WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Estate of Astrid Lindgren and Saltkråkan AB v. Comar Ltd. Case No. D2009-0771 1. The Parties
The Complainant is Estate of Astrid Lindgren and Saltkråkan AB, of Sweden (collectively referred to herein as the Complainant), represented by Graef Rechtsanwälte, Germany.
The Respondent is Comar Ltd., St. Petersburg, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Nicco Ltd., Russian Federation (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2009. On June 12, 2009, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 18, 2009, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details, and stating that the language of the Registration Agreement is Russian. In response to a June 24, 2009 notification by the Center regarding the language of proceedings, on June 25, 2009 Complainant filed a request for English to be the language of the administrative proceeding. With a message, made in both English and Russian languages, the Center invited Respondent to comment on Complainant's submission in respect of the language of the administrative proceeding by July 1, 2009. No comments were filed by Respondent within the deadline. Taking all above into account, 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 in both the English and Russian languages, and the proceedings commenced on July 2, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was July 22, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 24, 2009, in both English and Russian languages.
The Center appointed Assen Alexiev as the sole panelist in this matter on August 13, 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.
In relation to the language of the administrative proceeding, the Panel considered the following circumstances:
The specific language of the registration agreement is Russian. The English language is not the mother tongue of any of the parties or their representatives. At the same time, as evidenced by Complainant, the content of the website at the Domain Name is in the English language, and contains an invitation for the submission of offers for the purchase of the Domain Name by interested parties. Complainant has requested English to be the language of the proceedings, without any objections being filed by Respondent in this regard. The Complaint is filed in the English language.
Therefore, the Panel is of the opinion that both parties have shown their willingness (or at least lack of objections) to communicate in the English language, and neither of them would be put at a disadvantage if English is chosen as the language of the proceedings.
On this basis, and on the grounds paragraph 11(a) of the Rules, and paragraphs 10(a), (b) and (c) of the Rules, the Panel decided that the language of the administrative proceeding be English. 4. Factual Background
Complainant in this administrative proceeding comprise the heirs and legal successors of the world-famous Swedish children's book author Astrid Lindgren, author of “Pippi Langstrumpf” (aka “Pippi Longstocking”) and of other works featuring the fictitious character “Pippi”, as follows:
- “Pippi Langstrumpf” (published in Sweden in 1945, published in Germany in 1949);
- “Pippi Langstrumpf geht an Bord” (published in Sweden in 1946, published in Germany in 1950);
- “Kennst du Pippi Langstrumpf?” (published in Sweden in 1947, published in Germany in 1961);
- “Pippi in Taka-Tuka-Land” (published in Sweden in 1948, published in Germany in 1951);
- “Pippi zieht ein” (published in Sweden in 1969, published in Germany in 1970);
- “Pippi regelt alles” (published in Sweden in 1969, published in Germany in 1970);
- “Pippi ist die stärkste” (published in Sweden in 1969, published in Germany in 1970);
- “Pippi gibt ein Fest” (published in Sweden in 1970, published in Germany in 1971);
- “Pippi fährt zur See” (published in Sweden in 1971, published in Germany in 1972);
- “Pippi will nicht groß werden” (published in Sweden in1971, published in Germany in 1972);
- “Pippi außer Rand und Band” (published in Sweden in 1971, published in Germany in 1971);
- “Pippi plündert den Weihnachtsbaum” (published in Sweden in 1979, published in Germany in 1981); and
- “Pippi im Park” (published in Sweden in 2000, published in Germany in 2001).
Astrid Lindgren has achieved worldwide fame with the “Pippi Langstrumpf“/”Pippi Longstocking” works. Her books have been translated into 92 different languages and published in 100 countries worldwide.
The names “Pippi Langstrumpf”, “Pippi Longstocking”, “Pippi”, “Pippilotta Viktualia Rollgardina Schokominza Efraimstochter”, individually and/or in combination, have been used first by Astrid Lindgren and then by Complainants for more than 60 years. The name “Pippi” is known throughout the world and is used in nearly all languages and countries.
Astrid Lindgren has published more than 90 children's books, screenplays and stage plays. To date, approximately 147 million books have been sold worldwide, including 30 million copies in Germany alone, of which approx. 7.5 million “Pippi Langstrumpf” books.
Over the years, numerous movies and television series entitled “Pippi Langstrumpf”, “Die neuesten Abenteuer von Pippi Langstrumpf – Pippi geht von Bord”, “Pippi in Taka-Tuka-Land”, “Pippi außer Rand und Band”, “Hier kommt Pippi Langstrumpf” and “Pippi Langstrumpfs neueste Streiche”, including two animated films entitled “Pippi Langstrumpf” and “Pippi Langstrumpf in der Südsee”, have been produced and commercially exploited worldwide in different types of media, in close cooperation with Astrid Lindgren as the screenplay author.
Astrid Lindgren used to distribute, and now Complainant Saltkråkan AB distributes millions of sound carriers, CD-ROMs, toys, dolls, merchandising products, illustrated books, calendars, postcards, photo albums, cosmetic products, clothing for children such as shoes, T-shirts, skirts, children's socks, costumes, (carnival) wigs, etc. under the names “Pippi” or “Pippi Langstrumpf”.
There are many stage plays and musicals about the character Pippi Langstrumpf, as well as theme parks, e.g., “Astrid Lindgrens Värld” (in English - Astrid Lindgren's World) near Stockholm in Sweden.
In her will dated December 16, 1997, Astrid Lindgren designated her heirs as the owners and managers of her privacy and publicity rights, author's rights, copyrights and related proprietary rights. The Community of Heirs of Astrid Lindgren includes the representative of the community of heirs, Nils Nyman, as well as Karin Nyman, Mats Lindgren, Carl Johann Nyman, Carl Olof Nyman, Marlin Billing, Annika Lindgren, Anders Lindgren, and Ole Nyman. By agreement dated March 26, 1998, Astrid Lindgren transferred all rights to Complainant Saltkråkan AB for management.
Complainant Saltkråkan AB is the owner of numerous registered trademarks related to “Pippi” or “Pippi Langstrumpf”, listed below.
The trademark PIPPI has the following registrations:
- CTM 004709846, registered on January 29, 2009 for goods and services in international classes: 9, 16, 25, 28, and 41; and
- CTM 006158513, registered on February 3, 2009 for goods and services in international classes: 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 14, 15, 17, 18, 20, 21, 22, 24, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 38, 39, 40, 42, 43, 44, and 45.
The trademark PIPPI LANGSTRUMPF has the following registrations:
- CTM 004735411, registered on August 8, 2007 for goods and services in international classes: 9, 16, 25, 28, and 41;
- DE 30162491.7, registered in Germany on April 12, 2002 for goods and services in international class 42;
- DE 950244, registered in Germany on October 18, 1976 for goods and services in international classes 16 and 28;
- DE 30616844.8, registered in Germany on November 29, 2007 for goods and services in international classes 09, 16, 28, and 41.
The trademark PIPPI LONGSTOCKING has the following registrations:
- CTM 004709747, registered on August 8, 2007 for goods and services in international classes 9, 16, 25, 28, and 41;
- IR 980028, registered on July 11, 2007 for goods and services in international classes 16, 25, 28, and 41, for the territories of the following countries: Australia, China, South Korea, Russian Federation, United States of America; and
- US 2235766, registered in the United States of America on March 30, 1999 for goods and services in international classes 9 and 16.
The trademark PIPPI LANGKOUS is registered as a Community trademark CTM 005890066, registered on April 3, 2009 for goods and services in international classes 9, 16, 25, 28, and 41.
The trademark PIPPI CALZELUNGHE is registered as a Community trademark CTM 005890108, registered on April 13, 2009 for goods and services in international classes 9, 16, 25, 28, and 41.
Complainant Saltkråkan AB is also the owner of various domain names that contain the names “Pippi” or “Pippi Langstrumpf”, including , , , , , , , , , and .
The Domain Name was registered by Respondent on February 6, 2006. 5. Parties' Contentions A. Complainant
In Complainant's submission, the registered trademark PIPPI LANGSTRUMPF/ PIPPI LONGSTOCKING is widely known, creative, original and unique, and, as such, is entitled to the widest scope of protection afforded by law, including, but not limited to, protection against dilution and unfair competition. The popularity of “Pippi Langstrumpf/Pippi Longstocking” has been proven extensively. Complainant has been actively and continuously using the mark PIPPI LANGSTRUMPF/ PIPPI LONGSTOCKING.
Complainant contends to have common law trademark rights in the sign “Pippi Langstrumpf/Pippi Longstocking”. By virtue of the numerous books and merchandising the use of the name in connection with merchandising goods provides a strong indication of source. The use of a title of a work results in common law trademark rights. See, e.g., Helen Fielding v. Anthony Corbert aka Anthony Corbett,WIPO Case No. D2000-1000. When a search with the key phrase “Pippi Langstrumpf” is made in the German language version of the Google search engine, there are 762,000 results related to the Astrid Lindgren's fictitious character, and when a similar search is made with the key phrase “Pippi Longstocking” in the English language version of the same search engine, there are 581,000 relevant results. As stated in The Saul Zaentz Company d/b/a Tolkien Enterprises v. ATTO i.t.c., WIPO Case No. D2007-1495: “As a result of Complainant's extensive advertising, licensing, and promotion of the Tolkien Works and related films, stage productions, merchandise and other goods and services, the HOBBIT Marks have acquired substantial secondary meaning, identifying goods and services relating to the Tolkien Works and originating from Complainant or Complainant's licensees. Thus, independent of any of their trademark registrations, SZC and its predecessors have extensive common law rights to the HOBBIT Marks as a result of the worldwide fame, tremendous goodwill and reputation SZC and its predecessors have developed in the HOBBIT Marks, and the close association the HOBBIT Marks have with SZC.”
The Domain Name is identical to Complainant Saltkråkan AB's famous PIPPI LANGSTRUMPF/ PIPPI LONGSTOCKING trademark..
According to Complainant, Respondent should be considered as having no rights or legitimate interests in the Domain Name, because it has no connection, affiliation or other relationship with Complainant, and Complainant has never authorized Respondent to exploit its trademarks in any manner whatsoever. Respondent is currently maintaining an active registration of the Domain Name, and is holding it as a hostage for exploitation through the sale of advertising space.
Respondent has registered the Domain Name in bad faith.
Respondent was the registrant of the domain name , which was transferred to the complainant after a procedure under the Policy. See Kesko Oyj v. Comar Ltd.,WIPO Case No. D2003-0975.
The PIPPI LANGSTRUMPF/ PIPPI LONGSTOCKING trademark has a strong reputation and is widely known. Respondent can make no good faith use of the Domain Name, and, as stated in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003, “(i) the Complainant's trademark has a strong reputation and is widely known, as evidenced by its substantial use in Australia and in other countries; (ii) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name; (iii) the Respondent has taken active steps to conceal its true identity, by operating under a name that is not a registered business name; (iv) the Respondent has actively provided, and failed to correct, false contact details, in breach of its registration agreement, and (v) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant's rights under trademark law”.
Complainant requests the transfer of the Domain Name to Complainant Saltkråkan AB. B. Respondent
The Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Pursuant to Paragraph 4(a) of the Policy, Complainant must prove each of the following to justify the transfer of the Domain Name:
(i) That the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) That Respondent has registered and is using the Domain Name in bad faith.
According to Paragraph 5(b)(i) of the Rules, it is expected of a Respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for Respondent (domain name holder) to retain registration and use of the disputed domain name […]”
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to Respondent, in compliance with Paragraph 2(a) of the Rules, and Respondent was given a fair opportunity to present its case.
In the event of a default, under Paragraph (14)(b) of Rules: “the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent's control. Respondent's failure to present any such evidence or to deny complainant's allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. […] In the absence of any evidence to the contrary submitted by Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, Respondent's default entitles the Panel to conclude that Respondent has no arguments or evidence to rebut the factual assertions of Complainant. The Panel has to take his decision on the basis of the statements and documents submitted by Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
Complainant has provided evidence and has thus established its rights in the famous word trademark PIPPI LANGSTRUMPF and its variations in different languages, registered for the territories of a large number of countries around the world.
It is a common practice under the Policy to disregard gTLDs such as the “.com” section of domain names for the purposes of the comparison under Paragraph 4(a)(i) of the Policy. Therefore, the relevant part of the Domain Name is its “pippilangstrumpf” element, which is visually and phonetically identical to Complainant's PIPPI LANGSTRUMPF trademark.
On these grounds, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
Complainant claims that Respondent has no rights or legitimate interests in the Domain Name, stating various arguments in this regard - that Respondent has no connection, affiliation or other relationship with Complainant, that Complainant has never authorized Respondent to exploit its trademarks in any manner whatsoever, that Respondent is illegitimately exploiting the Domain Name for the sale of advertising space, and finally that there is no plausible good faith use of the Domain Name that may be made by Respondent in order to give rise to rights and legitimate interests of the latter in it.
Thus, Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name.
It is well established that once a complainant makes out a prima facie case under Paragraph 4(a)(ii) of the Policy, the burden shifts to respondent to rebut the showing by providing evidence of its rights or legitimate interests in the domain name.
Respondent, by its default, has failed to present to the Panel any allegations or documents in its defense despite its burden under Paragraph 5(b)(i) and 5(b)(ix) of the Rules, or the consequences that a Panel may extract from the fact of a default (Paragraph 14 of the Rules). If Respondent had any justification for the registering or using the Domain Name, it could have provided it. In particular, Respondent has failed to contend that any of the circumstances described in Paragraph 4(c) of the Policy, - or any other circumstance - is present in its favor.
In fact, the only information available about Respondent is the WhoIs information, provided by the Registrar, and the content of the website, associated with the Domain Name.
The WhoIs information contains no evidence of rights or legitimate interests of Respondent in the Domain Name, apart from its rights as registrant of the latter.
As contended by Complainant, the website associated to the Domain Name contains an invitation for the submission of offers for the purchase of the Domain Name by interested parties. Complainant's PIPPI LANGSTRUMPF trademark is undoubtedly famous, being clearly distinctive and having an worldwide goodwill created through the talent and efforts of Astrid Lindgren in the course of decades. This being so and Respondent having provided no reasons for its choice of the Domain Name, the Panel is of the opinion that it is likely that Respondent was well aware of Astrid Lindgren and her famous books at the time of the registration of the Domain Name, and had them in mind at the time of registration of the Domain Name. In this context, the registration and use of the Domain Name for exploiting the goodwill associated with Astrid Lindgren and her books, cannot give rise to rights and legitimate interests of Respondent in the Domain Name. This finding is further strengthened by the lack of any claims by Respondent of rights and legitimate interest in the Domain Name or, indeed, the rebuttal of any of Complainant's allegations in this proceeding.
Therefore, as the evidence supports the contentions of Complainant, and it is not challenged by Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
In the present case, Complainant has submitted convincing evidence about the extensive popularity of Astrid Lindgren's books and the fictitious character known as “Pippi” and “Pippi Langstrumpf” and their variations in different languages all over the world, as well as about the considerable efforts undertaken by Complainant for the protection of the rights related to these works, and the continuous use of the “Pippi” and “Pippi Langstrumpf” in respect of various goods.
The Domain Name is identical to Complainants' widely known trademark PIPPI LANGSTRUMPF, and Respondent has registered it without having any rights or legitimate interests in it, while very likely having been aware of the large amount of goodwill of the trademark and its commercial value. Then, Respondent appears to have used the Domain Name only to invite offers for its purchase by interested parties, and has chosen to remain silent in this administrative proceeding.
In these circumstances, the Panel is prepared to accept Complainant's contentions in respect of the lack of any plausible use of the Domain Name by Respondent, which would not be illegitimate, and of the bad faith of the latter. As stated in Benetton Group S.p.A. v. Azra Khan, WIPO Case No. D2002-0810, “Given the Complainant's numerous trademark registrations and its wide reputation with connection with the mark United Colors of Benetton, it is also hard to conceive that the Respondent could legitimately use the Domain Name. It is not likely that any trader would choose a name including the trademark United Colors of Benetton if not to create an impression of association with the Complainant”.
Therefore, and in the absence of any contentions or evidence to the contrary, the Panel concludes that Respondent has registered and used the Domain Name in bad faith. Complainant has established the third element of the test under Paragraph 4(a) 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 as requested to Complainant Saltkråkan AB.
Assen Alexiev
Sole Panelist
Dated: September 1, 2009
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