WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION BEGA Gantenbrink-Leuchten KG v. 7 celsius graphic Case No. D2009-0384 1. The Parties
Complainant is BEGA Gantenbrink-Leuchten KG of Hennenbusch, Germany, represented by Schollmeyer & Rickert Rechtsanwaltsgesellschaft m.b.H. of Germany.
Respondent is 7 celsius graphic of Islamic Republic of Iran. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 23, 2009. On March 24, 2009, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On March 24, 2009, Tucows Inc. transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on March 30, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 19, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 20, 2009.
The Center appointed Jeffrey M. Samuels as the sole panelist in this matter on May 1, 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
Complainant is a specialist in all questions relating to lighting and illumination technology. Complainant owns numerous trademark registrations, in Germany, within the European Union and elsewhere, for the mark BEGA, as used, in general, on lighting appliances and lights and parts thereof. Complaint Annex 3. Complainant's BEGA mark was first registered in Germany in 1971.
The disputed domain name was registered on November 1, 2008. Complaint, Annex 7.
On December 23, 2008, Complainant's attorneys sent a “cease and desist” letter to Respondent. Up until this point in time, Respondent's website at contained the official website content of Complainant. Complaint, Annex 5. Upon receipt of the “cease and desist” letter, Respondent's website was changed to consist essentially of a blank page, with only the wording “soon” appearing thereon. Subsequent to receipt of the “cease and desist” letter, Respondent also offered to sell the domain name to Complainant for EUR19,530. Complaint, Annex 9. 5. Parties' Contentions A. Complainant
Complainant contends that the domain name consists of Complainant's trademark BEGA, which is the dominant and distinctive feature of the domain name. According to Complainant, the inclusion of the generic wording “” does not have an impact on the consumer perception, which is that the disputed domain name is confusingly similar, in parts even identical, to Complainant's mark.
Complainant further argues that Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name. Complainant asserts that Respondent cannot claim or show any rights to the domain name that are superior to Complainant's rights in the BEGA mark, nor can Respondent demonstrate that it was not aware of the BEGA mark at the time it registered the domain name.
Complainant also indicates that there exists no relationship between the parties that would give rise to any license, permission, or authorization by which Respondent could own or use the domain name.
Complainant further maintains that Respondent is not commonly known by the disputed domain name and is not making legitimate noncommercial or fair use of the domain name.
With respect to the requisite “bad faith” registration and use, Complainant notes that Respondent, after having been requested to release the domain name, sought to sell it to Complainant for EUR19,530. Complainant also relies upon the fact that Respondent's website, at least up until the time the “cease and desist” letter was received, provided users with the complete and identical website content of Complainant's official website.
Complainant contends that the domain name was registered in bad faith because the registration violates the terms of Respondent's registrar's Registration Agreement, which requires a registrant to represent that, to the best of one's knowledge, neither the registration nor use of the domain name infringes upon the legal rights of a third party. According to Complainant, “[g]iven the fact, that the Respondent used the website under the domain name in issue to provide its users with the contents copied from the Complainant's official company's website, it obviously knew the Complainant's company and also its trademark BEGA.”
Finally, Complainant maintains that, through the use of the domain name Respondent intentionally attempts to attract, for commercial gain, Internet users to Respondent's website, by creating a likelihood of confusion with Complainant's mark and its business. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the mark BEGA. The disputed domain name incorporates the distinctive term BEGA in its entirety and the generic term “price” has little, if any, impact on the Internet user.
The evidence also clearly establishes that Complainant has rights in the BEGA mark. Such rights are evidenced by Complainant's many trademark registrations for the mark. B. Rights or Legitimate Interests
The Panel finds that Complainant has sustained its burden of proving that Respondent has no rights or legitimate interests in the domain name. There is no evidence that any of the circumstances set forth in paragraph 4(c) of the Policy is applicable and Complainant has established that there exists no relationship between the parties that would give rise to any license, permission, or authorization by which Respondent could own or use the domain name. C. Registered and Used in Bad Faith
The Panel concludes that the disputed domain name was registered and is being used in bad faith. The evidence establishes that Respondent registered the domain name primarily for the purpose of selling the registration to Complainant for valuable consideration in excess of Respondent's out-of-pocket costs related to the domain name, within the meaning of paragraph 4(b)(i) of the Policy. Such evidence consists of Respondent's offer to sell the domain name to Complainant for EUR19,530 (far more than the cost of registering the domain name) and the fact that Respondent's current “www.” site basically consists of a blank page with only the word “soon” appearing thereon.
It is also clear that, as a result of the use of the domain name, Respondent intentionally attempted to attract, for commercial gain, Internet users to its site by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of such site or of the products found at such site, within the meaning of paragraph 4(b)(iv) of the Policy. As determined above, the disputed domain name is confusingly similar to Complainant's BEGA mark and, at least until such time as the “cease and desist” letter was received, Complainant's BEGA products could be found at Respondent's site. Indeed, Respondent's site initially incorporated the entire contents of Complainant's site. 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 Complainant.
Jeffrey M. Samuels
Sole Panelist
Dated: May 11, 2009
Full & Egal Universal Law Academy