WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dirk Krischenowski v. Stefan Ammon / AmmonCT EDV Support
(alias ATC or Andreas Ammon)
Case No: D2002-0819
1. The Parties
The Complainant is Dirk Krischenowski, of Berlin, Germany.
The Respondent is Stefan Ammon / AmmonCT EDV of Nienstaedt, Germany.
2. The Domain Names and Registrar
The disputed Domain Names, and are registered with CORE Internet Council of Registrars. The Domain Name is registered with Gal Communications (CommunitGal) Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 24, 2002. On September 2, 2002, the Center transmitted by email to Gal Communications (CommunitGal) Ltd. and to CORE Internet Council of Registrars a request for registrar verification in connection with the Domain Names at issue. On September 2 and 5, 2002, respectively, Gal Communications (CommunitGal) Ltd. and CORE Internet Council of Registrars, respectively, transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 2, 2002. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 3, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was October 23, 2002. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent�s default on October 24, 2002.
The Center appointed Dr. Andrea Jaeger-Lenz as the sole Panelist in this matter on November 8, 2002. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant gives no further information about his background or business. The Complainant claims to be owner of trademarks which he does not specify any further in his Complaint. According to the documentation that the Complainant himself submitted, he is owner of the German trademark Registration No. 30100268.1 "kopfschmerz", applied for on January 3, 2001, and registered on December 6, 2001, for the services "operations of bars and restaurants" in class 42. It can be deducted further from the attachments to the Complaint, that the Complainant has jointly with an individual named Katrin Ohlmer in the legal form of a GbR ("Gesellschaft bürgerlichen Rechts" according to German Law) claimed title protection according to the German Trademark Act for the title "www." by placing an advertisement in the September 2000 of the magazine "text intern". However, he does not provide any information on how this title has actually been put to use. Furthermore, he has included as attachments to his Complaint another claim for title protection under the German Trademark Act on behalf of a company "imind GbR", located in Berlin, for the title "www.brust" by placing an advertisement in the February 2001 issue of the magazine "text intern". As regards this title, the Complainant provides no further evidence or information as to the way in which he is related to the company "imind GbR" or is entitled to validate trademark rights of "imind GbR". Furthermore, he provides no further evidence as to how this title has been put to actual use.
According to the further attachments submitted by the Complainant, the Respondent registered the Domain Name on July 31, 2001, with the Registrar Gal Communications (CommunitGal) Ltd. The second Domain Name at issue, , was registered by the Respondent on July 31, 2001, with the Registrar CORE Internet Council of Registrars. The third Domain Name at issue, , was registered by the Respondent on July 30, 2001, also with the Registrar CORE Internet Council of Registrars.
The Complainant provides no further information as to how the Respondent has used or is using the Domain Names. He does not provide any information either as to any communications or relationships that existed between the Complainant and the Respondent prior to this dispute.
All Domain Names at issue were, according to the attached excerpts from the Afilias ".info" Whois database, registered during the Sunrise Registration Period. The printouts supplied from the Afilias .info database indicate the trademarks the Respondent claims to have in Australia in relation to and as basis for all respective Domain Names.
5. Parties� Contentions
A. Complainant
The Complainant claims that the Respondent registered the Domain Names with false trademark data during the Sunrise Registration Period. He further claims that the Domain Names are identical to the Complainant�s valid trademarks/servicemarks. He also claims that the Respondent has no legitimate rights in the Domain Names because he registered many Domain Names during the Sunrise Registration Period with false trademark data for his own financial interest. Finally, he claims that with knowledge of the Complainant�s trademark the Respondent registered the Domain Names and tries to use them to attract for commercial gain, internet users to the Respondent�s website and for the purpose of disrupting the business of competitors and the Complainant.
No further contentions or any supporting material was brought by the Complainant to give credibility to these contentions.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements to obtain an order that the Domain Names should by cancelled or transferred:
(1) The Domain Name registered by the Respondent is identical or confusingly similar to a trademark or servicemark in which the Complainant has rights; and
(2) The Respondent has no rights or legitimate interests with respect to the Domain Name; and
(3) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The issue that first has to be examined is whether the Complainant really does have, as he claims, trademark rights in terms that are identical or confusingly similar to the Domain Names. This has to be determined separately for each Domain Name in question.
As to the contested Domain Name , the Complainant is owner of a German trademark registration "Kopfschmerz" which claims protection for operating bars and restaurants only. This registration predates the registration of the Domain Name of the Respondent. This trademark is identical to the Respondent�s Domain Name , since the top level domain ".info" has to be disregarded for the purposes of assessing identity or confusing similarity. Therefore, the Complainant has proved the first element of the Policy with regard to the Domain Name .
As regards the contested Domain Name , it is not apparent that the Complainant in his own and individual right has any rights to a trademark "www.". If any such trademark right existed, it would be vested with the company "Dirk Krischenowski & Katrin Ohlmer GbR" which as a company is not identical to the Complainant as an individual. In addition, the Complainant has only asserted rights on the basis of an advertisement. Such advertisement could only give rise to a trademark-type right of title protection under section 5 of the German Trademark Act. However, it is not necessary to determine whether such rights would qualify for protection under the Policy as the Complainant has not been able to prove ownership of such a right. According to the German Trademark Act, title protection only comes into existence if the title is being properly used within a reasonable period of time after the publication of the advertisement. The period that is generally accepted under German trademark practice is six months. However, the Complainant has failed to establish that the title "www." has been put to any actual use whatsoever by Dirk Krischenowski & Katrin Ohlmer GbR after publication of the advertisement in September 2000. Therefore, the Complainant has failed to prove even title protection in the term.
As to the contested Domain Name , the Complainant has failed to establish that he has any rights whatsoever in a trademark bearing the denomination "www.brust". The reason for that is that the advertisement in "text intern" for title protection for "www.brust", which with proper use may have led to a title protection and thus trademark-type rights, has been placed in "text intern" not by the Complainant, but by a company called "imind GbR", which is not identical to the Complainant. The Complainant failed to provide any detail as to why he personally should be entitled to derive any rights in this title. Besides that, title protection is deemed not to exist as there lacks any demonstration of use.
For this reason, the Panel need only concern itself in its further discussion and findings with the Domain Name . The reason is that the Complainant has failed to establish any trademark rights in trademarks that are identical or confusingly similar to the other two Domain Names at issue, namely and .
B. Rights or Legitimate Interests
The Complainant claims that the Respondent has no legitimate rights in the Domain Name because he registered many Domain Names during the Sunrise Registration Period with false trademark data for his own financial interest.
However, the Complainant failed to establish that the trademark data provided by the Respondent was indeed false as regards the Domain Name . Knowing the German language, it is obvious that the word "Kopfschmerz" is identical to the English word "headache", being the general description of a physical discomfort. Therefore, it would obviously be impossible to obtain trademark protection for "kopfschmerz" in Germany for pharmaceuticals or any headache-related products or services. However, the Respondent, according to the trademark data provided in Afilias� .info Whois database, is supposed to be owner of an Australian trademark dating from 1997. While it is indeed not obvious that the Respondent seated in Germany would have registered a trademark for "kopfschmerz" in 1997 in Australia, it is not impossible either, since "kopfschmerz" as a German word is not generally known in Australia, and therefore it is not obvious that the Respondent cannot own a trademark right for that term in Australia. After all, the Complainant himself has obtained trademark protection for the word "kopfschmerz" in Germany for "bar and restaurant services", even though he does not claim to be really operating any bars and restaurants at all. Therefore, it would have been up to the Complainant to substantiate that the Respondent lacks any legitimate interest in the Domain Name. He could have done so by providing the result of a search of the Australian trademark office or the result of an inquiry at the Australian trademark office or a letter of an Australian trademark lawyer having inquired as to the status of a trademark "kopfschmerz" in Australia. However, the Complainant has failed to provide any of this and has therefore failed to meet its burden of proof.
Moreover, knowing that the word "kopfschmerz" is the translation of the English word "headache", it is not apparent why the Complainant should have any more rights to the Domain Name than the Respondent and why the Domain Name should be transferred to the Complainant. "Kopfschmerz" is certainly not a famous trademark for bars and restaurants.
Therefore, as regards the disputed Domain Name , the Complainant has failed to establish the second element necessary for requesting the transfer of the Domain Name under the Policy, the lack of legitimacy of the Respondent�s interest.
C. Registered and Used in Bad Faith
Since the Complainant has failed to establish trademark rights identical or confusingly similar to the Domain Names and , and since the Complainant has not provided any convincing arguments to support that the Respondent lacks rights or legitimate interests in the Domain Name , the Panel need not further discuss whether the third element for requiring the transfer of the Domain Names under paragraph 4(b) of the Policy, which is the registration and use in bad faith, has been established by the Complainant. However, it may be added that the Complainant has not been able to advance evidence to support this contention either.
7. Decision
For all the foregoing reasons, the Complaint is denied.
Dr. Andrea Jaeger-Lenz
Sole Panelist
Dated: November 22, 2002
Full & Egal Universal Law Academy