WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Grundfos A/S v. Ian Puddick / Leakbusters LTD Case No. D2009-0150 1. The Parties
The Complainant is Grundfos A/S of Bjerringbro, Denmark, represented by Delacour Dania Law Firm, Denmark.
The Respondent is Ian Puddick / Leakbusters LTD of London, United Kingdom of Great Britain and Northern Ireland. 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 February 4, 2009. On February 4, 2009, the Center transmitted by email to 1&1 Internet AG a request for registrar verification in connection with the disputed domain name. On February 5, 2009, 1&1 Internet AG transmitted by email to the Center its verification response. After confirming that Complainant had served the concerned Registrar with a copy of the Complaint, 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 February 10, 2009. On February 12, 2009, the proceedings were suspended for a period of fifteen (15) days. On February 25, 2009, the Complainant requested that the proceedings be suspended for an additional period of fifteen (15) days. On February 26, 2009, the Center confirmed that the administrative proceeding was suspended until March 13, 2009. On March 13, 2009, further to the Center's receipt of Complainant's request to this effect, the Center advised the parties that the proceedings were re-instituted and that the due date for Response was March 20, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 24, 2009.
After the Panel cleared potential conflicts of interest, the Center appointed Jonathan Hudis as the sole panelist in this matter on April 7, 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. 4. Factual Background
According to the Complaint, the Complainant, Grundfos A/S, is a part of the Grundfos Group (established in 1945) and is today wholly owned by the Swiss Company Grundfos Holding A.G., which in turn is ultimately owned by the Poul Due Jensen Foundation of Denmark. The Respondent, Ian Puddick, resides in London, Great Britain, and is the owner of the plumbing company Leakbusters Ltd. According to an abstract of an interview with Mr. Puddick submitted with the Complaint, he also works in corporate communications and is a part-time hypnotist.
Complainant claims that Grundfos Group is one of the largest and leading manufacturers of high technology pumps and pump systems in the world. Complainant trades under the company name and trademark GRUNDFOS in many locations including in Denmark and the United Kingdom. Complainant submitted with the Complaint copies of its Danish and United Kingdom trademark registrations for the GRUNDFOS mark. In an article published in Fortune Magazine in January 2003, Complainant was listed as one of the 10 great companies to work for in Europe.
The contested domain name was registered with the Registrar 1&1 Internet AG on May 4, 2008. According to a screen capture of the website resolving to , material published at this site is a click-through portal to other websites offering varying products including sump pumps, water jet bricks, water jetting systems, concrete pumps, aluminum, mixing pumps, diaphragm pumps, concrete pumps and cryopumps. Complainant claims that several of these products originate with other manufacturers who apparently are competitors of Grundfos A/S and the products it offers.
On January 9, 2009, Complainant sent a cease-and-desist letter, requesting that Respondent voluntarily transfer the disputed domain name to Complainant. Complainant never received a response to this letter. 5. Parties' Contentions A. Complainant
Complainant contends that the contested domain name is confusingly similar to a trademark in which Complainant has rights; that Respondent has no rights or legitimate interests with respect to the domain name; and that the domain name has been registered and is being used by Respondent in bad faith. Complainant requests a transfer to it of the contested domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Complainant has the burden of proving all three of the following elements under paragraph 4(a) of the policy:
(i) That the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark to which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect to the domain name; and
(iii) That the domain name has been registered and is being used in bad faith.
The failure to prove any one of these factors is fatal to the Complaint.
Respondent had the opportunity to respond and present evidence that it has rights or legitimate interests in respect of the contested domain name. Respondent chose not to do so. Complainant is not entitled to relief simply by reason of Respondent's default. However, the Panel can and does draw evidentiary inferences from the Respondent's failure to respond.
As the WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Decision Overview” available at )1 makes clear, “the Respondent's default does not automatically result in a decision in favor of the Complainant. Subject to [the minimum prima facie case to be asserted by the Complainant that the respondent lacks rights of legitimate interests], the Complainant must establish each of the three elements required by Paragraph 4(a) of the UDRP. While a panel may draw negative inferences from the Respondent's default, Paragraph 4 of the UDRP requires the Complainant to support its assertions with actual evidence in order to succeed in the UDRP proceeding.” WIPO Decision Overview at Sections 2.1 and 4.6.
Paragraph 14 of the Rules provides that:
(a) in the event that a party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these rules or the Panel, the Panel shall proceed to a decision on the Complaint.
(b) if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these rules or any requests from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
The Panel must now decide whether Complainant has come forward with sufficient evidence to satisfy the requirements of paragraphs 4(a)(i), (ii) and (iii) the Policy. Identical or Confusingly Similar
Complainant has demonstrated its rights in the GRUNDFOS mark to the Panel's satisfaction by its submission with the Complaint of copies of its Danish and United Kingdom trademark registrations for the GRUNDFOS mark. Respondent has not come forward to dispute Complainant's rights in its GRUNDFOS mark. The disputed domain name is confusingly similar to the GRUNDFOS mark, it being well established that the gTLD “.com” may be disregarded for the purposes of this comparison. Further, the addition of the generic word “cheap” to the GRUNDFOS mark does not detract from the confusing similarity between the GRUNDFOS mark and the domain name. Hardee's Food Systems Inc. v. Denise Jones,WIPO Case No. D2006-1571 (February 28, 2007) (“a domain name registrant may not avoid a finding a confusing similarity by appropriating another's entire mark and adding descriptive or non-distinctive matters to it).
The Panel finds, therefore, that the Complainant has met its burden with respect to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Complainant asserts that Respondent has no rights or legitimate interests in the domain name. Complainant also asserts that Respondent's activities at the website resolving to the disputed domain name (displaying sponsored links) indicate no factual evidence whatsoever supporting that the Respondent has any rights or legitimate interests in said domain name.
Since Complainant has made a prima facie showing of Respondent's lack of rights or legitimate interests and Respondent, due to his default, did not come forward with any evidence supporting his rights or legitimate interests with respect to the domain name, the Panel is satisfied that the Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Examples recited in the Policy of the Respondent's bad faith registration and use of a domain name include proof that: Respondent registered or acquired the disputed domain name primarily for the purpose of sale to the Complainant for profit in excess of costs; Respondent registered the domain name to prevent Complainant from registering its GRUNDFOS mark in a corresponding domain name (and Respondent has engaged in a pattern of such conduct); Respondent registered the contested domain name primarily for the purpose of disrupting Complainant's business as a competitor; and intentionally intended to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's GRUNDFOS mark as to the source, sponsorship, affiliation, endorsement of Respondent's website or the products or services on Respondent's website. Policy, paragraphs 4(b)(i) and (iv). Of these recited examples, the Panel finds that Respondent (i) registered the contested domain name primarily for the purpose of disrupting Complainant's business as a competitor; and (ii) intentionally has attempted to attract, for commercial gain, Internet users to his website by creating a website address with Complainant's GRUNDFOS mark within it so as to create a likelihood of confusion as to the source, sponsorship, affiliation, endorsement of Respondent's website or the products on Respondent's website.
The “bad faith factors” specified in paragraph 4(b) of the Policy are not exclusive or exhaustive. Therefore, the Panel also finds Respondent's failure to respond to Complainant's correspondence and to participate in these proceedings as further indication or Respondent's bad faith.
Therefore, Complaint has met its burden under paragraph 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 transferred to the Complainant.
Jonathan Hudis
Sole Panelist
Dated: April 15, 2009
1 Although the WIPO Decision Overview is not precedential in nature, it does reflect a studied and considered summary of consensus positions culled from the decisions of numerous panelists during the first five years of administration of the UDRP. When such a consensus has developed, it is incumbent upon panels to follow the consensus (or the majority view) to promote consistency in UDRP decisions. Fresh Intellectual Properties, Inc. v. 800N, Inc.,WIPO Case No. D2005-0061 (March 21, 2005), at n. 3.
Full & Egal Universal Law Academy