WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Grundfos A/S v. Luca Mueller Case No. D2009-0091 1. The Parties
The Complainant is Grundfos A/S of Bjerringbro, Denmark, represented by Delacour Law Firm, Denmark.
The Respondent is Luca Mueller of Unterfoehring, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with About Domain Dot Com Solutions Pvt. Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 22, 2009. On January 23, 2009, the Center transmitted by email to About Domain Dot Com Solutions Pvt. Ltd. a request for registrar verification in connection with the disputed domain name. On January 29, 2009, About Domain Dot Com Solutions Pvt. Ltd. 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” or “UDRP”), 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 January 30, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was February 19, 2009. The Respondent did not submit a formal response. Accordingly, the Center notified the Respondent's default on February 20, 2009.
On February 25, 2009 the Center received an email communication from the Complainant, indicating that the Respondent consented to transfer the domain name to the Complainant and requesting that the proceedings be suspended. The Center suspended the proceedings on February 25, 2009. As no transfer of the disputed domain name from the Respondent to the Complainant took place, the Complainant on April 24, 2009 filed a request to re-institute the proceedings. On April 27, 2009 the Center re-instituted the proceedings.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on April 28, 2009. 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.
On May 1, 2009 the Respondent sent a short email to the Center, affirming that it should be noted that it tried to transfer the domain name to the Complainant, but was unable to do so due to the domain name remaining locked with the Registrar. The Respondent also affirmed that it was willingly to transfer the domain name to the Complainant. 4. Factual Background
The Complainant is part of the Grundfos Group established in 1945. The Grundfos group is a large manufacturer of high technology pumps and pumps systems. The Complainant's GRUNDFOS trademark is registered in many countries, including Germany. The GRUNDFOS trademark has been registered in Germany since 1968.
The disputed domain name was registered on September 26, 2007. 5. Parties' Contentions A. Complainant
The Complainant claims that:
The domain name is confusingly similar to the Complainant's trademarks, domain names and company name as the domain name consists solely of the Complainant's trademark GRUNDFOS and the generic term “insite”.
The Respondent has no rights or legitimate interests in respect of the domain name.
The Respondent is using the disputed domain name for commercial gain by attracting Internet users to the website under the domain name by creating a likelihood of confusion between the Complainant's trademark and the disputed domain name with the purpose of making profit on sale of sponsored links to inter alia manufacturers and distributors of pumps and pumps systems (i.e. links to the Complainant's competitors).
The domain name has been registered and is being used by the Respondent in bad faith.
The Respondent did not reply to the Complainant's cease and desist letter of January 9, 2009. B. Respondent
The Respondent did not deny Complainant's contentions.
Indeed, on May 1, 2009 the Respondent sent a short email to the Center, indicating that “It should be noted that we have been trying to transfer this domain willingly to the Complainant for quite some time now, but were never able to do so due to the domain remaining locked with the registrar. We still wish to resolve this amicably rather than go through the process, but the Complainant finally gave up after their inability to transfer it, despite our desires to allow them to do so. So if there's a way we could get this resolved or clarified, so that we can avoid the next steps that would be great”. 6. Preliminary Discussion
In the present case, from the documentation at hand, it appears that: a) immediately after the commencement of the proceeding, the parties have tried, in agreement, to transfer the domain name from the Respondent to the Complainant; b) this transfer was apparently not finalized due to the domain name remaining locked with the Registrar; and c) this proceeding was first suspended to enable the parties to implement a transfer and then, once the transfer appeared not to be practicable, it was re-instituted by the Complainant with the aim of getting a transfer decision.
Since the documentation provided by the Complainant and the Center does not include any document explicitly showing the Respondent's willingness to transfer the domain name, but shows enough elements to infer it, this Panel considers it fair to both parties to accept Respondent's email of May 1, 2009 which is a confirmation of Respondent's willingness to transfer the domain name. 7. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use by providing an efficient and quick administrative procedure.
Paragraph 15(a) of the Rules provides that the panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the panel deems applicable.
Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) The domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) The respondent has no rights or legitimate interests with respect to the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
As was noted by the panel in The Cartoon Network LP, LLLP v. Mike Morgan,WIPO Case No. D2005-1132, “A number of panel decisions have considered the proper course where a respondent has unilaterally consented to transfer a disputed domain name to a complainant. There have been at least three courses proposed: (i) to grant the relief requested by the complainant on the basis of the respondent's consent without reviewing the facts supporting the claim (see Williams-Sonoma, Inc. v. EZ-Port,WIPO Case No. D2000-0207; Slumberland France v. Chadia Acohuri,WIPO Case No. D2000-0195); (ii) to find that consent to transfer means that the three elements of paragraph 4(a) are deemed to be satisfied, and so transfer should be ordered on this basis (Qosina Corporation v. Qosmedix Group,WIPO Case No. D2003-0620; Desotec N.V. v. Jacobi Carbons AB,WIPO Case No. D2000-1398); and (iii) to proceed to consider whether on the evidence the three elements of paragraph 4(a) are satisfied because the respondent's offer to transfer is not an admission of the complainant's right (Koninklijke Philips Electronics N.V. v. Manageware,WIPO Case No. D2001-0796) or because there is some reason to doubt the genuineness of the respondent's consent (Société Française du Radiotéléphone-SFR v. Karen,WIPO Case No. D2004-0386; Eurobet UK Limited v. Grand Slam Co,WIPO Case No. D2003-0745).”
This Panel does not find that a unilateral consent to transfer a disputed domain name by itself satisfies the three elements of paragraph 4(a) of the Policy, but deems that, where the Complainant has established its rights on a trademark that is identical or confusingly similar to the disputed domain name, a consent to transfer by the Respondent provides a basis for an order for transfer without the need to consider the paragraph 4(a)(ii) and 4(a)(iii) elements. 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 Complainant.
Fabrizio Bedarida
Sole Panelist
Dated: May 8, 2009
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