WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
IFPI Secretariat, IFPI International Federation of the Phonographic Industry v. Peter Kopimi Sunde aka Brokep
Case No. D2007-1328
1. The Parties
The Complainants are IFPI Secretariat, United Kingdom of Great Britain and Northern Ireland; and IFPI, International Federation of the Phonographic Industry, Switzerland.
The Respondent is Peter Kopimi Sunde aka Brokep, Sweden.
2. The Domain Name and Registrar
The Disputed Domain Name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 4, 2007. On September 10, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On September 10, 2007, eNom transmitted by email to the Center its verification response. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 1, 2007. 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 5, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 25, 2007. The Response was filed with the Center on October 23, 2007.
The Center received supplemental filings from the Complainant by e-mail on October 22, 2007 and in hard copy on October 24, 2007.
The Center appointed Alistair Payne as the sole panelist in this matter on November 5, 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 Complainant is an organization representing the interests of numerous facets of the music industry in relation to copyright protection. They were established in 1933, and have operated continuously since then. They have, over time, expanded their operations to a global scale and have become synonymous in recent years with the fight against music copyright infringement, and those propagating the illegitimate use of peer-to-peer software. The Complainant has numerous trademark registrations for IFPI in the UK, Switzerland and China as well as other jurisdictions since at least 1995.
The Disputed Domain Name was previously registered to the Complainant. It then lapsed and was registered by a third party, who, it appears, was initially listed as Mr. Pascal de Vries, the first named Respondent, in these proceedings. However, Mr. de Vries contacted WIPO and confirmed that he has never registered or owned the Disputed Domain Name and he did not know why his name was on the register for this. This claim was subsequently confirmed by Mr. Peter Kopimi Sunde (also known as Brokep), whose name is now on the register for the Disputed Domain Name. The Panel is satisfied that Mr. Peter Kopimi Sunde aka Brokep is the correct Respondent in the current proceedings. The Respondent is one of the founders of an organization called the Piratebay which runs a large internet server for peer to peer file sharing activities. It is also an organization which is known for its support of on-line piracy.
The Complainant is seeking the transfer of the Disputed Domain Name
5. Parties’ Contentions
A. Complainant
The Complainant contends that it has trademark rights in IFPI and that those rights are being infringed by the Disputed Domain Name registered to the Respondent. The Complainant argues that the Disputed Domain Name is identical to the mark in which it has rights, that the Respondent has no rights or legitimate interests in the Disputed Domain Name and that it was registered, and subsequently used, in bad faith. The Complainant contends that the Respondent has made no demonstratable preparations for use of the domain and that it is merely being held in order to prevent the Complainant from exercising their rights in their marks. The Complainant also contends that the Respondent has attempted to avoid this dispute through cyber flight.
B. Respondent
The Respondent contends that IFPI is merely an acronym and not a trademark, thus not affording the Complainant any rights. The Respondent claims to have rights and legitimate interests because the Disputed Domain Name was transferred to him for the purposes of providing information relating to piracy. The Respondent also contends that the registration and subsequent use was not in bad faith, and that his inability to access or alter the website at the Disputed Domain Name should prevent the Panel from inferring bad faith use.
6. Jurisdiction
The Respondent has challenged the Panel’s jurisdiction based on the fact that the Complainant’s organization acted in an observer status at the WIPO. However, both the WIPO and this Panel operate independently of any party to this dispute. The common interest of promoting the protection of intellectual property does not create a conflict of interest in this case and as such no conflict arises. The Respondent accepted the transfer of the Disputed Domain Name and the terms of the Policy, which includes submitting to the jurisdiction and the decision of an independently appointed Administrative Panel. As such the Panel is satisfied that it has jurisdiction to decide this dispute.
7. Discussion and Findings
If the Complainant is to succeed, it must prove each of the three elements referred to in Paragraph 4(a) of the Policy, namely that:
i. the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights;
ii. the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
iii. the Disputed Domain Name has been registered and is being used in bad faith.
The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in Paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Complainant has provided and the Panel accepts, evidence of its many trademark rights for IFPI and its reputation in several countries including the UK. The Disputed Domain Name is identical to the IFPI trademark. Therefore, the Panel is satisfied that the Complainant has satisfied Paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant must firstly establish a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. As noted above, the Panel accepts the Complainant’s evidence of its numerous trademark rights in the IFPI trademark. The Panel notes that the Disputed Domain Name was registered after the Complainant failed to renew it. The Disputed Domain Name is currently not in use and has a pirate skull design presented on it. At the time that this dispute commenced was used to provide a blog called “IFPI.com, free music downloads” with sponsored links to free music downloading sites. The Panel accepts that this was not a legitimate use of the Disputed Domain Name. It has been held by several WIPO UDRP panels that use of a domain name to provide click-through sponsored links to another website does not of itself grant the registrant rights or legitimate interests in the domain name. See MBI, Inc. v. Moniker Privacy Services/Nevis Domains LLC, WIPO Case No. D2006-0550 and also Royal Bank of Canada v. Henry Chan,WIPO Case No. D2003-0031. Further, the Respondent has provided no evidence of demonstrable preparations to use the Disputed Domain Name otherwise. The Panel is therefore satisfied that the Complainant has established a prima facie case that the Respondent has no rights and legitimate interests in the Disputed Domain Name.
The Respondent is not commonly known as IFPI, nor has he been authorized by the Complainant to use the Disputed Domain Name. The Respondent is involved with the Piratebay website company and neither he nor this organization have any trade names or trademark rights for IFPI. The Respondent asserts that he has been making preparations on another server to launch a website at the Disputed Domain Name and as such has legitimate interests in . The Respondent also says that he intends to use the acronym IFPI and the Disputed Domain Name for the establishment of an organization called the “International Federation of Pirates Interests”. However, the Respondent has provided the Panel with no evidence of any actual demonstrable preparations to establish this website or Federation. Even if this is in fact the Respondent’s intention, it is unlikely, for the reasons given below, that this would be considered a bona fide use of the Disputed Domain Name. The Panel is, therefore satisfied that the Respondent has not rebutted the Complainant’s prima facie case that he has no rights or a legitimate interest in the Disputed Domain Name and as such the Complainant has satisfied Paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent must have known of the Complainant’s organization and rights in the IFPI trademark when he registered the Disputed Domain Name. This is so in view of the Complainant’s substantial reputation and the fact that the Respondent, by his own admission, was aware of the Complainant’s activities for some time prior to this dispute. The Respondent has not provided the Panel with a legitimate reason for registering the Disputed Domain Name in these circumstances, other than that he sought to promote an organization said by Respondent to be called the “International Federation of Pirate’s Interests.”
Furthermore, the change to the registrant details after the initiation of this dispute is dubious. The Panel is not entirely convinced by the Respondent’s argument that he received the Disputed Domain Name from an anonymous donor. However, there is insufficient evidence on the face of it to determine whether this is a clear case of cyber flight or not.
The website to which the Disputed Domain Name resolved prior to the date of the Complaint, displayed sponsored links to free music downloading sites and it now displays a skull image indicative of piracy. Copyright piracy is an activity that directly contradicts the Complainant’s main aims and objectives. Re-directing web traffic from the Complainant’s website to the Disputed Domain Name would be likely in the Panel’s view to cause direct confusion with the Complainant’s rights and activities. Even if the Respondent intends a future bona fide non-commercial use for the Disputed Domain Name he has not provided sufficient evidence of proposed use. The Respondent has only indicated that the intended site is for the purposes of a pro-piracy lobby.
The Panel considers in particular that the use of the Disputed Domain Name in the manner that the Respondent proposes and without sufficient evidence from the Respondent to the contrary, would compete with the Complainant’s bona fide interests. In the Panel’s view the requirements of Paragraph 4(b)(iii) of the UDRP are satisfied in this case in that the Respondent has registered the Disputed Domain Name in bad faith primarily for the purpose of disrupting the Complainant’s business.
Based on this analysis and in the absence of sufficient evidence to the contrary, the Panel finds that the Respondent registered and is using the Disputed Domain Name in bad faith. Therefore, the Panel is satisfied that Paragraph 4(a)(iii) of the Policy has been fulfilled.
8. 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 Complainant1.
Alistair Payne
Sole Panelist
Dated: November 19, 2007
1 The Panel notes that while the WhoIs data currently indicates “Peter Kopimi” of the “organization” Brokep as the current registrant of record, the Registrar never replied to the Center’s requests for express confirmation of this apparent fact. The last reply received by the Center from the Registrar, apparently prior to the change in the WhoIs data to Mr. Kopimi, confirmed the-then registrant as “Mr. Pascal De Vries”. The Panel wishes to clarify for any avoidance of doubt that whatever the case may be, the Panel is ordering that the disputed domain name be transferred to the Complainant.
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