WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Grundfos A/S v. Jan Svoboda Case No. D2009-0526 1. The Parties
The Complainant is Grundfos A/S of Denmark, represented by Delacour Dania Law Firm of Denmark.
The Respondent is Jan Svoboda of Czech Republic. 2. The Domain Name and Registrar
The disputed domain name is registered with M. G. Infocom Pvt. Ltd. dba MindGenies. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 22, 2009. On April 22, 2009, the Center transmitted by email to M. G. Infocom Pvt. Ltd. dba MindGenies a request for registrar verification in connection with the disputed domain name. On April 23, 2009, M. G. Infocom Pvt. Ltd. dba MindGenies 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 April 29, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 19, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 20, 2009.
The Center appointed Dietrich Beier as the sole panelist in this matter on May 27, 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
The Complainant belongs to the Grundfos group established in 1945. The Grundfos group is one of the largest and leading manufacturers of high technology pumps and pump systems in the world. By the end of 2008, the company had approximately 17,900 employees and a net turn over exceeding 19 Billion Danish Crowns. The Grundfos group is represented by more than 50 companies around the world including the Czech Republic. The mark GRUNDFOS is registered world wide inter alia in Germany and the Czech Republic by international registration 341863 registered in 1968 in classes 7,9,10 and 11.
The trademark GRUNDFOS is well known all over the world and especially within the relevant industries.
The domain name was registered on June 29, 2008, and was used for a website on which a broad range of products was marketed and offered for sale, inter alia pumps and pump systems originating form other manufacturers than the Complainant.
On April 6, 2009, a cease and desist letter was sent to the Respondent requesting the Respondent to voluntarily transfer the disputed domain name to the Complainant. The Complainant did not receive a response. 5. Parties' Contentions A. Complainant
The disputed domain name must be considered to be confusingly similar with Complainant's well known trademark GRUNDFOS. Reference is made to Grundfos A/S v. Orion Web,WIPO Case No. D2005-0618 where the character of Complainant's trademark GRUNDFOS was characterized as very well known. The disputed domain name is completely identical with Complainant's trademark GRUNDFOS with the only exception that the last letter “s” is substituted by an “x” creating the likelihood of confusion.
The Respondent's activities in relation to the website under the disputed domain name indicate no facts or evidence supporting that the Respondent has any rights or legitimate interests in the disputed 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 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 pump systems originating form other manufacturers than Grundfos and hereby infringing the Complainant's trademark rights by making commercial use of a designation confusingly similar to the Complainants trademark GRUNDFOS. B. Respondent
The Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
In order to succeed in its claim, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) The domain name 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. A. Identical or Confusingly Similar
The Complainant has established the fact that it has valid trademark rights for GRUNDFOS in several classes.
The disputed domain name is confusingly similar to the GRUNDFOS marks. The disputed domain name only differs towards the trademark at the end by one letter (see also Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441), i.e. “x” instead of the “s”. Since the beginning of a designation attracts more attention as the end, a confusing similarity is given already in view of the similar visual impression (see Microsoft Corporation v. M aka Tarek Ahmed, WIPO Case No. D2000-0548). This analysis is also supported by the same overall impression the trademark and the domain name suggests.
The Panel therefore considers the disputed domain name in question to be confusingly similar to the trademark GRUNDFOS in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
In view of the content of the website and in consideration that Respondent did not file any response to the warning letter or in the present proceedings, no rights of the Respondent are conceivable. Respondent has also no legitimate interest in the disputed domain name since there is no indication that the Respondent is commonly known by the name Grundfox nor that the Respondent is using the disputed domain name in connection with a bona fide offering of related goods or services. For the latter, as the panel in Mayflower Transit LLC v. Domains by Proxy Inc./Yariv Moshe,WIPO Case No. D2007-1695 stated correctly, it must be noted that the use of a domain name confusingly similar to a complainant's trademark for the purpose of offering sponsored links does not of itself qualify as a bona fide use. Also a non commercial or fair use is not noticeable.
The Panel therefore finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Due to the nature of the GRUNDFOS marks as well known, the Respondent must have been well aware of the Complainant and its trademarks when registering the disputed domain name.
Furthermore, by using the disputed domain name for a sponsored link website where inter alia products of competitors of the Complainant are advertised, it is obvious for this panel that the Respondent registered the disputed domain name primarily with the intention of attempting to attract, for commercial gain, Internet users to a potential website or other online locations, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of such potential website or location, or of a product or service on such website or location.
The Panel therefore considers that the disputed domain name has registered and used in bad faith in accordance with 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.
Dietrich Beier
Sole Panelist
Dated: June 10, 2009
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