WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Chocoladefabriken Lindt & Spr�ngli AG v. Domain Magic, LLC
Case No.�D2007-0461
1. The Parties
The Complainant is Chocoladefabriken Lindt & Spr�ngli AG, Kilchberg, Switzerland, represented by Mayer, Brown, Rowe & Maw, Germany.
The Respondent is Domain Magic, LLC, Lutz, Florida, United�States�of�America.
2. The Domain Name and Registrar
The disputed domain name (the�“Domain�Name”) is registered with Domain�Contender,�LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on March�26,�2007. On March�28,�2007, the Center transmitted by email to Domain Contender, LLC a request for registrar verification in connection with the domain name at issue. On March�28,�2007, Domain Contender, LLC 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 and technical contact. The Center verified that 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 April�4,�2007. In�accordance with the Rules, paragraph�5(a), the due date for Response was April�24,�2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April�30,�2007.
The Center appointed William Peter Knight as the sole panelist in this matter on May�9,�2007. 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 Domain Name was registered on January�24,�2006.
The Complainant is well known as a Swiss chocolatier which, according to the Complaint, has been in business since 1845. One of the founders was Rodolphe Lindt who in 1879 developed a new technique for making chocolate with superior qualities of flavour and texture, which has become associated with his name from that time. The�Complainant makes a number of chocolate-based products, including a type of chocolate referred to as a “truffle”. It is the owner of the trademark LINDT in many countries, including Canada (UCA26258 with a priority date October�17,�1946), Germany (No.�91037, with a priority date of September�27,�1906), Switzerland (No.�349150 with a priority date of October�29,�1986) and the United States (No.�87,306, with a priority date of July�9,�1912). The name LINDT is, in fact, an extremely famous one with respect to chocolate products, and it cannot be conceived that an entity such as the Respondent and those who control it would not be fully aware of the name, its owner, and the products which it makes.
The Complainant has registered in its name a number of domain names containing the word “Lindt”, including the following:
on December�16,�1997;
on November�19,�2001;
on August�1,�2001;
on February�28,�2000;
on November�16,�2001;
on March�31,�2005;
on October�16,�2000;
on January�16,�2004;
on March�18,�2003;
on March�31,�2005;
on October�17,�1996;
on December�1,�2004;
on July�11,�1997; and
on April�24,�2002.
all of which predate the registration date of the Domain Name, which resolve to a single website by means of which the Complainant provides information and services in a great number of different languages.
The Domain Name is not being used at all, other than as a “portal site” or “landing page” with links to various other links relating to confectionery (including, sometimes, the chocolates of the Complainant offered by third party resellers).
The Complainant argues that the abusive nature of the registration of this domain name should be regarded as self-evident.
5. Parties’ Contentions
A. Complainant
In accordance with paragraph�4(a) of the Policy, the Complainant asserts, inter alia, as follows:
(i) that the Domain Name is confusingly similar to the Complainant’s name and registered trademarks;
(ii) that the Respondent has neither conceivable rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant’s assertions in respect of (i) and (ii) are supported, in short, by the obvious similarity between the dominant element in the Domain Name “lindt”, with the mere addition of the generic word “truffles”, one of the principal products of the Complainant and by the fact that the Complainant asserts that it has given no permission to the Respondent to register or use the Domain Name. The only apparent purpose and use of the Domain Name is to redirect Internet users, in the main, to competing products.
In support of (iii), the Complainant asserts that registration and use in bad faith is evidenced by the fact of the Respondent must have registered the Domain Name in circumstances where the Respondent knew full well of the Complainant’s overwhelming legal rights to the mark LINDT and has made no subsequent legitimate use of the name.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph�4(a) of the Policy.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if the Respondent had chosen to take advantage of the opportunities afforded to them, expressly, by paragraph�4(c) of the Policy.
Paragraph�15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent.
A. Identical or Confusingly Similar
It is clear that the Complainant is the owner of the LINDT trademark, through registration of the trademark and use throughout the world.
The mere addition of a generic word after the Complainant’s trademark, and in particular a word identifying a product associated with the Complainant, will not be sufficient to distinguish the disputed domain name if the dominant impression given by the disputed domain name remains the complainant’s trademark.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s famous mark LINDT and, accordingly, paragraph�4(a)(i) of the Policy is satisfied in this case.
B. Rights or Legitimate Interests
The Complainant’s name and mark is widely known throughout the world. The Respondent was entitled, and had every opportunity, to demonstrate some right or legitimate interest with respect to the Domain Name, and paragraph�4(c) of the Policy gives good examples of how the Respondent could have done so. The Respondent has given no explanation.
No apparent effort has been made by the Respondent to use the disputed domain name for any legitimate purpose which might explain its choice. For example, the Respondent’s use of the Domain Name is not for the purpose of informing the public, or any other form of commentary which might serve to explain Respondent’s interest, but rather to attract those who might be interested in the Complainant, for one reason or another, and to direct them to other products and suppliers.
The Panel, therefore, agrees with the Complainant’s submission that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
Paragraph�4(a)(iii) of the Policy directs that the Complainant must establish that the Domain Name has been registered and used in bad faith.
So far as concerns the first limb of this requirement, registration in bad faith, since this is a case in which:
(a) the Respondent registered the Domain Name in circumstances where it must have been aware of the pre-existing rights of the Complainant;
(b) there is virtually no commercial use which could be made of the Domain Name which would not infringe the legal rights of the Complainant and be misleading and deceptive upon the public; and
(c) if the Respondent had any intention to make some legitimate use of the Domain Name, it has had ample opportunity either to do so or otherwise to explain its conduct, but has done neither.
Based on the foregoing this Panel concludes that the Respondent registered the Domain Name with bad faith, in the sense required by the Policy.
Turning now to the second limb of this requirement, “use in bad faith”:
(a) the Complainant’s trademark has a strong reputation and is widely known, as evidenced by its registration as a trademark and use in many countries;
(b) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the Domain Name, and the evidence of recent use provided by the Complainant plainly shows an intention by the Respondent, to attract Internet users interested in the Complainant’s product to various other suppliers of confectionery products, often not offering the Complainant’s product at all;
(c) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the Domain Name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.
The Panel therefore concludes that the Respondent has registered and is using the Domain Name in bad faith.
7. Decision
In the light of the findings in paragraph�6 above, the Panel concludes that:
- the subject domain name is confusingly similar to the trademark LINDT belonging to the Complainant; and
- the Respondent has no rights or legitimate interests in the Domain Name; and
- the Domain Name has been registered and is being used in bad faith.
Accordingly, the Panel orders in accordance with paragraphs�4(i) of the Policy and 15�of the Rules that the subject domain name be transferred to the Complainant.
William Peter Knight
Sole Panelist
Dated: May�11,�2007
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