WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Credit Suisse Group v. Freddy Iseli
Case No. D2002-0794
1. The Parties
The Complainant in this administrative proceeding is Credit Suisse Group, Paradeplatz 1, P.O. Box 1, 8070 Zürich, Switzerland.
The Respondent is Freddy Iseli, Postfach 65, 8592 Uttwil, Switzerland.
2. The Domain Name and Registrar
The domain names in dispute are , and .
The Registrar with which the domain name is registered is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complaint on August 23, 2002, by e-mail, and on August 27, 2002, in hardcopy. The Center had acknowledged receipt thereof on August 23, 2002.
On August 23, 2002, the Center sent the corresponding Request for Registrar Verification in connection with this case to Network Solutions, Inc. On August 26, 2002, the Registrar's verification response confirmed that the Registrant was Freddy Iseli and that the domain names , and were in "active" status.
On September 3, 2002, after having verified whether the Complaint was satisfying the formal requirements, the Center notified by e-mail and courier the Commencement of Administrative Proceeding to the Parties, in accordance with Paragraph 4 of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules").
On September 26, 2002, the Center issued by e-mail the Notification of Default to the Respondent for having failed to submit a response to the Complaint within the deadline granted.
On October 15, 2002, the Center proceeded with the appointment of the Administrative Panel pursuant to Paragraph 6 of the Rules and advised the Parties of the appointment of the said Panel in accordance with Paragraph 6(f) of the Rules.
Transmission of the file to the Administrative Panel was made on October 15, 2002, by e-mail and registered post/courier.
The Administrative Panel forwarded its decision to the Center within the time limit fixed.
4. Factual Background
The Complainant is the owner of a large number of trademark registrations throughout the word for "CREDIT SUISSE GROUP" as well as for other trademarks containing the words CREDIT SUISSE (Complainant's Annex 6).
5. Parties� Contentions
A. Complainant
The Complainant submits the following:
(i) The domain names , and are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The distinctive part of the domain names at issue is certainly "credit-suisse", which is not only the name of the Complainant, a famous Swiss bank, but also the essential part of numerous trademark and service mark registrations owned by the Complainant throughout the world.
(ii) The Respondent has no rights or legitimate interests in respect of the domain names.
All three domain names are active and point to the same web site where the Respondent advertises his activities as an "Interest group of small and medium-sized enterprises against unfair practices of Swiss Banks" (The Pressure Group (IG-KMU).
The Respondent himself is only known under his name "Freddy Iseli". There is no connection between the Respondent and the company "Credit Suisse Group", "Credit Suisse" or any other unit of the Credit Suisse Group.
The Respondent�s use of the three domain names is non-legitimate and unfair. He uses the Complainant�s name as domain names simply to attract more traffic to his web site. Inspection of his web site shows that this is a place for disparaging banks in general and the Complainant in particular.
(iii) The domain names were registered and are being used in bad faith.
All three domain names are used in bad faith, because the Complainant�s name is used only to attract traffic to the Respondent�s web site. This Complaint is not aimed at restricting the Respondent�s right to free speech, but he could express his views in a web site run under his own name as a domain name or a domain name not related to any existing company or individual.
The fact that the Respondent has registered and uses three identical (except for the TLD) domain names proves that he is using them in bad faith. Very obviously his intentions are to disrupt the Complainant�s business by blocking these domain names and redirecting the users to his own web site, "The Pressure Group IG-KMU" (Complainant's Annex 7).
B. Respondent
The Respondent has not submitted any response to the Complaint.
6. Discussion and Findings
Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy") sets forth three requirements, which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent's domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is present so as to warrant relief, according to Paragraph 4(a) of the Policy.
The Administrative Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to Paragraph 15(a) of said Rules.
A. Identity or Confusing Similarity
There is no doubt that there is identity between the Complainant's trademarks "CREDIT SUISSE GROUP" and the domain names , and , at least confusingly similar to the Complainant's trademarks containing the words "CREDIT SUISSE".
The Complainant has also established numerous trademark and service mark registrations throughout the world such as "CREDIT SUISSE GROUP" and "CREDIT SUISSE" (see Complainant's Annex 6).
B. Rights or Legitimate Interests of the Respondent
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances, if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to or legitimate interests in the domain name in dispute. Those circumstances are described as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to Paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the domain name in dispute. This entitles the Administrative Panel to draw any such inferences from such default as it considers appropriate pursuant to Paragraph 14(b) of the Rules (see Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009; Isabelle Adjani .v. Second Orbit Communications, Inc., WIPO Case No. D2000-0867). The Panel is even entitled, under these circumstances, to infer that the Respondent has no rights or interests in the domain names (see Alcoholics Anonymous v Raymond, WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayai ve Tic, WIPO Case No. D2000-0011.)
It is the Administrative Panel�s finding that the Complainant has established that the trade and service marks "CREDIT SUISSE GROUP" and "CREDIT SUISSE" have been known throughout the world for a significant period of time. Furthermore, absent evidence to the contrary, the Complainant has not granted any license or otherwise permitted the Respondent to use such trade and service marks or to apply for any domain name incorporating the said trade and service marks.
The exercise of "free speech" rights for criticism and commentary has been sometimes considered as a valid defence that a Respondent may raise. But this does not go without any limitation: as pointed out by the Administrative Panel in the Monty and Pat Roberts case (Monty and Pat Roberts, Inc. v. Bill Keith, WIPO Case No. D2000-0299 at p. 9) regardless "�as to the truth or falsity of the allegations of Respondent in so far as they relate to the quality or characteristics of Complainant's services [�] the right to express one's views is not the same as the right to use another's name to identify one's self as the source of those views. One may be perfectly free to express his or her view about the quality or characteristics of the reporting of the New York Times or Time Magazine. That does not, however, translate into a right to identify one's self as the New York Times or Time Magazine". Likewise, in the Migros case (Migros Genossenschaftsbund v. Centro Consulenze Kim Paloschi, WIPO Case No. D2000-1171 at p. 5), the Administrative Panel held that even if it "admitted that the aim of the website was to serve as a discussion forum, it is of the opinion that the exercise of the right of free speech does not require the use of Domain Name identical to the trademark of the Complainant. Respondent could have easily chosen a Domain Name which would indicate clearly to the public that the site is not Complainant's official website, but a discussion forum on Complainant's activities". In the same way, a Sole Panelist recently ruled - whilst expressing himself on the bad faith issue - that "whilst the Respondent is free to express his own opinion about the Complainant and its work he is not free to suggest that he is, in fact, the Complainant or somehow associated with the Complainant through the use to which he has put the Domain Name" (Women on Waves Foundation v. Chris Hoffman, WIPO Case No. D2000-1608, at p. 4). Finally, in an earlier decision, whilst acknowledging that shareholders or other interested parties had a right to voice opinions, concerns and criticism with respect to a listed company and that Internet constituted an ideal vehicle for such activities, a Panel found that the issue at hand was not as the Respondent seemed to contend, the freedom of speech and expression "but the mere choice of the domain name used to exercise this inalienable freedom of speech and expression" (Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020, at p. 4); in addition, this Panel, pointing out that when registering the domain name the Respondent knowingly chose a name identical to the trademark of the Complainant, stated that "Respondent could have chosen a domain name adequately reflecting both the object and independent nature of its site, as evidence today in thousands of domain names" (same case).
On the basis of the above cited precedents which are fully endorsed by this Administrative Panel, the Respondent would be unable to rely on free speech to claim legitimate interests in the use of the domain names in dispute.
In view of the foregoing, the Administrative Panel is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the domain names at stake.
C. Registration and Use in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following behaviors is sufficient to support a finding of bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
As already pointed out above, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate his good faith in the registration or use of the domain names in issue.
The Administrative Panel finds there is no evidence suggesting exceptional circumstances for the failure of the Respondent to submit a Response.
Moreover, this Administrative Panel draws from this failure the following two inferences: (i) the Respondent does not deny the facts which the Complainant asserts, and (ii) the Respondent does not deny the conclusions which the Complainant asserts can be drawn from these facts. Nevertheless, the Administrative Panel has the responsibility of determining which of the Complainant�s assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO Case No. D2000-0944).
It has been held that actual or constructive knowledge of the Complainant's rights in the trademarks is a factor supporting a finding of bad faith (see T v. Daniel Deamone, WIPO Case No. D2001-1066; Expedia, Inc. v European Travel Network, WIPO Case No. D2000-0137). It is obvious from the facts in issue that the Respondent had actual knowledge of such rights.
Previous cases have also established that the deliberate choice and registration of a famous mark as domain names suggests, in the absence of an explanation from the Respondent, that the registrations were made in bad faith.
The Administrative Panel considers that the Respondent's activity of attracting the Complainant's customers by using domain names identical to the Complainant's trademarks and disparaging Complainant on the web site is a clear use of bad faith within the general meaning of Paragraph 4(b) of the Policy.
In the absence of a Response, the Administrative Panel is of the view that the Complainant has made out a prima facie case and shall therefore order the transfer of all three domain names.
7. Decision
In light of the foregoing, the Administrative Panel decides that the domain names registered by the Respondent are identical to the corresponding trademarks of the Complainant, that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name in issue has been registered and is being used in bad faith by the Respondent.
Accordingly, pursuant to Paragraph 4(i) of the Policy, the Administrative Panel requires that the registration of the domain names , and shall be transferred to the Complainant.
Christophe Imhoos
Presiding Panelist
Francine Tan
Panelist
Tom Arnold
Panelist
Dated: October 29, 2002
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