WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VAG - Armaturen GmbH v. Domain Drop S.A.
Case No. D2007-0673
1. The Parties
The Complainant is VAG - Armaturen GmbH, Mannheim, Germany, represented by Charrier Rapp & Liebau Patentanw�lte Anwaltshaus, Germany.
The Respondent is Domain Drop S.A., Charlestown, West Indies, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name is registered with BelgiumDomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2007. On May 9, 2007, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name at issue. On May 10, 2007, BelgiumDomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 May 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 11, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 13, 2007.
The Center appointed Peter G. Nitter as the sole panelist in this matter on June 28, 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 legal name of the Complainant is VAG-Armaturen GmbH. The Complainant is a manufacturer of devices connected with the collecting, transporting and storing of drinking- and industrial water, such as pumps, valves and fittings.
The Complainant has numerous trademarks for the distinctive name “VAG” in many countries of the world, i.e.:
DE 920 523 VAG
IR 417 014 VAG
IR 607 034 VAG
EU 002 832 327 VAG
CA TMA249956 VAG
IN 1 498 328 VAG
Further, the Complainant is the owner of numerous other trademarks with the predominating word component “VAG”, i.e. trademarks like VAG-EKN, VAG BAIO, EURO VAG etc.
5. Parties’ Contentions
A. Complainant
The Complainant contends the following:
The domain name at issue is identical with the company name of the Complainant “VAG-Armaturen GmbH”.
Further, as the word “Armaturen” has clearly the meaning of “fittings” the attacked domain name is predominated by the word “vag” which is identical with the Complainant’s trademarks, particularly with community trademark EU 002 832 327 VAG.
The word “Armaturen” is the German word for the term “fittings” which is clearly descriptive in view of nearly all goods manufactured and distributed by the Complainant. The abbreviation “GmbH” is the standard abbreviation for the German legal person “Gesellschaft mit beschr�nkter Haftung” with the meaning “plc = public limited company”.
Therefore, the company VAG-Armaturen GmbH is characterized only by the first abbreviation “VAG” whereas the words “Armaturen” and “GmbH” are descriptive.
It may be taken for granted that the Respondent has no rights or legitimate interests in respect of the domain name at issue.
The domain name at issue has been the Complainant’s company name for decades. It can be regarded as impossible that the Respondent has established earlier rights in this domain name. Further, it is impossible that the Respondent is a licensee of the company’s name of the Complainant.
The Respondent is not commonly known by the domain name. Only the Complainant is very well known in the relevant trade circles by its company name.
The domain name at issue was registered and has been used in bad faith.
As can be seen from the print out of the website resolving to the disputed domain name, it contains links to several manufacturers of fittings, i.e. the companies “Berluto Armaturen”, “Steinberg Armaturen”, “Garant Armaturen”, “Gebo Armaturen”, “Geka Armaturen”, “Friedrichs Armaturen”, “Fisher Armaturen”, “Armaturen Weco” and many more.
The Respondent uses the disputed domain name to allow competitors of the Complainant (presumably against a fee) to publish their links. The consumer, using the domain name in good faith and expecting to come to the Complainant’s website, is therefore directed to the plurality of links of competitors of the Complainant. This can clearly be regarded as an act of bad faith of the Respondent. Clearly, by using the domain name , the Respondent intentionally attempts to attract for commercial gain, Internet users to the Respondent’s website or other on-line locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product of service on the Respondent’s website or location.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The domain name at issue is not identical to the Complainant’s trademarks, and the question is therefore whether there is confusing similarity between the domain name and any of the Complainant’s trademarks.
The Panel accepts the Complainant’s argument that the word “Armaturen”, meaning “fittings” in the Germarn language, is a generic and un-distinctive part of the domain name at issue, and furthermore that it is descriptive of the products manufactured by the Complainant. The distinctive part of the domain name at issue is thus “vag”, a term in which the Complainant has registered trademark rights.
As the disputed domain name merely consists of the term “vag” in which Complainant has rights, and the generic term “Armaturen”, which is descriptive of Complainant’s business, the Panel finds that there is confusing similarity between the domain name at issue and trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Panel has considered the allegation made by the Complainant that the Respondent lacks any rights or legitimate interests in the domain name at issue. Respondent is in default and has therefore not contested these allegations.
It is generally difficult for the Complainant to prove the negative that the Respondent does not have any rights or legitimate interests in the domain name at issue. For the Respondent, on the other hand, it would be fairly simple to demonstrate that it has any such rights or legitimate interests pursuant to Paragraph 4(c) of the Policy. In the event of a respondent’s default, previous decisions under the UDRP have therefore found it sufficient for the Complainant to make a prima facie showing of its assertion.
The Panel finds it evidenced that the Complainant is a major manufacturer of devices connected with the collecting, transporting and storing of drinking- and industrial water, such as pumps, valves and fittings, and is offering such products under its company name “VAG – Armaturen GmbH” and its range of trade mark registrations containing the “vag” term in the international market. The Complainant has furthermore stated that it has not granted the Respondent any rights to use its name, or that it has ever been affiliated with the Respondent.
As it will appear from the discussions in section C below, the Panel further finds that the Respondent has not used and is not using the disputed domain name “in connection with a bona fide offering of goods or services”, nor is there a legitimate noncommercial or fair use being made of the disputed domain name.
For the above reasons, the Panel finds it unlikely that the Respondent would have any rights or legitimate interests in the domain name. The Complainant has made a prima facie showing that the Respondent lacks such rights or legitimate interests which has not been rebutted by the Respondent. The Panel therefore finds that the Complainant has established the second element of the Policy.
C. Registered and Used in Bad Faith
The website corresponding to the domain name at issue contains links to various manufacturers and traders of the same kind of products that are being manufactured by the Complainant. The Panel agrees with the Complainant that the Respondent’s registration and use of the domain name at issue clearly is an attempt to trade on the goodwill and renown of the Complainant’s company name and trademarks, by leading Internet users seeking information on the Complainant to its website. The Panel finds it furthermore clear that the Respondent’s attempt to divert Internet traffic to its website is for commercial gain, as it seems clear that the business idea is to generate revenue from advertisers on the website.
The Respondent’s registration and use of the domain name at issue is an attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the web site corresponding to the domain name at issue, which is an example of circumstances indicating bad faith, pursuant to paragraph 4(b)(iv) the Policy.
It is thus clear to the Panel that the domain name at issue has been registered and used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Peter G. Nitter
Sole Panelist
Date: July 2, 2007
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