WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Compagnie Gervais Danone v. Werner Fischer-Weppler Case No. D2008-1247 1. The Parties
The Complainant is Compagnie Gervais Danone, Paris, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is Werner Fischer-Weppler, Malgersdorf, Germany, represented by Wolfgang Löffler, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2008. On August 15, 2008, the Center transmitted by email to 1&1 Internet AG a request for registrar verification in connection with the domain name at issue. On August 18, 2008, 1&1 Internet AG transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the registrant of record for the disputed domain name was not the person specified in the Complaint as the Respondent and that the language of the registration agreement was German, the Complainant sent an Amendment to the Complaint on August 27, 2008 and informed the Center that it had required in its Complaint that English should be the language of the proceedings. On September 9, 2008, 1&1 Internet AG informed the Center by email that the wrong WHOIS data had been provided in their communication of August 18, 2008, confirmed that the Respondent is listed as the registrant and provided the contact details. The Center sent an email communication to the Complainant on September 16, 2008 providing the registrant and contact information disclosed by the Registrar. In the same communication, the Center informed the parties that it would (1) accept the Complaint in English and initiate the proceedings, (2) accept an Answer in German or English, (3) appoint a Panelist who is proficient in both languages if possible, and (4) leave it up to the Panelist to decide on the language of the proceedings. 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 September 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 6, 2008. The representative of the Respondent sent a letter on October 6, 2008 informing the Center that the Respondent had been abused by a third person to obtain and use wrong WHOIS data for the registration of the disputed domain name. The Complainant commented by email to the Center of October 13, 2008 that it had no other option than to continue the proceedings under the circumstances.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on October 30, 2008. 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, Compagnie Gervais Danone, is a worldwide leading company in fresh dairy products, bottled water, baby food and medical nutrition. It employs nearly 90'000 people in all five continents.
ACTIMEL is present in 30 countries. It is a probiotic drink which contains the unique culture L. Casei Imunitas, which can help support the body's defenses by providing consumers high levels of good bacteria. The Complainant owns numerous ACTIMEL trademarks which are protected throughout the world, including in Germany, the domicile of the Respondent. Its trademarks are very well known, especially in the field of food products.
The disputed domain name has been registered on January 7, 2008. On May 2, 2008, the Complainant sent a cease-and-desist letter to the registrar 1&1 Internet AG. Despite numerous reminders, the Respondent never replied to defend his registration of the disputed domain name. 5. Parties' Contentions A. Complainant
The Complainant objects to the use of the disputed domain name by the Respondent and bases its Complaint on the following grounds:
1. The addition by the Respondent of the German suffix “-isiert” to the Complainant's trademarks does not prevent a finding of confusingly similarity with respect to the domain name at issue.
2. The Respondent makes no legitimate non-commercial or fair use of the domain name at issue. The Complainant has no relationship with the Respondent and has never authorized the Respondent to use the Complainant's marks or its trade name as a domain name. The Respondent has not commonly been known by the domain name and does not conduct any legitimate commercial or non-commercial business activity under the domain name.
3. The Respondent registered and uses the disputed domain name with the only purpose to divert customers to its own website for commercial gain. Accordingly, the domain name was registered and is being used in bad faith. B. Respondent
The Respondent has informed in his letter of October 6, 2008 that his identity has been abused by a third person to obtain and use wrong WHOIS data for the registration of the disputed domain name. 6. Discussion and Findings A. Language of the Proceedings
Paragraph 11 of the Rules stipulates that the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
In the present proceedings, it shall be taken into account that the Respondent has not submitted any detailed Response, but indicated in its letter of October 6, 2008 that his identity had been abused by a third person to obtain and use wrong WHOIS data for the registration of the disputed domain name. In view of the Complainant's request that the language of the proceedings be English, the Respondent's letter of October 6, 2008, and for reasons of efficiency, the decision shall be taken in English. B. Identical or Confusingly Similar
The disputed domain name incorporates the Complainant's ACTIMEL trademark in its entirety, followed by “-isiert”. In German, “-isiert” is translated as “-ized”. In other words, the suffix “-isiert” is used in the German language to create adjectives. The word “actimel” does not mean anything in German. It is only known in relation to the Complainant's products. Therefore, the disputed domain name could be translated into English as “actimelized”.
The German public has come to perceive the mark ACTIMEL as being owned by the Complainant and would therefore assume that a domain name such as would be owned by the Complainant. In fact, a Google search of the term “actimelisiert” leads to web pages related to the Complainant's products. However, typing in the disputed domain names directs Internet users to the Respondent's inactive website. This leads to confusion in the minds of Internet users attempting to find the Complainant's ACTIMEL website.
Considering the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant's ACTIMEL trademarks. The Complainant has thus fulfilled the requirements under paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests / Bad Faith Registration and Use
Considering the Respondent's information that his identity has been abused by a third person to obtain and use wrong WHOIS data for the registration of the disputed domain name, it is apparent that the Respondent has no rights or legitimate interest in the domain name and that the disputed domain name has been registered and is being used in bad faith.
The Complainant has thus fulfilled the requirements of paragraph 4(a)(ii) and 4(a)(iii) of the Policy. 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 cancelled.
Tobias Zuberbühler
Sole Panelist
Dated: November 13, 2008
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