WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION euro AWK s.r.o v. Comar Ltd., Domain Administrator / Domain Protect LLC, Whois privacy services Case No. D2009-1628 1. The Parties
The Complainant is euro AWK s.r.o, Czech Republic, represented by Studio Legale Cohausz & Florack, Czech Republic.
The Respondents are: Domain Protect LLC, Russia and Comar Ltd., Domain Administrator / Domain Protect LLC, Whois privacy services, Russia. 2. The Domain Name and Registrar
The disputed domain name is registered with DomReg Ltd. d/b/a LIBRIS.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2009. On December 3, 2009 the Center transmitted by email to DomReg Ltd. a request for registrar verification in connection with the disputed domain name. DomReg Ltd. transmitted by email to the Center its verification response. On December 12, 2009, DomReg Ltd. d/b/a LIBRIS.com transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 30, 2009 providing the registrant and contact information disclosed by the Registrar together with the language of the proceedings document, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on January 5, 2010. The Center verified that the Complaint together with the amendment to 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 Respondents of the Complaint, and the proceedings commenced on January 15, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 4, 2010. The Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on February 8, 2010.
The Center appointed Piotr Nowaczyk as the sole panelist in this matter on February 24, 2010. 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 is a company operating under the name “euro AWK s.r.o” with its registered office at Maltézské nám. 7, CZ-118 00 Praha 1, Czech Republic (hereinafter “euro AWK”).
Euro AWK is an internationally well-known company on the outdoor advertising market.
Euro AWK is an internationally registered trademark:
International registration thereof No. 662104 claiming priority of August 13, 1996 and protected in SK, BA, HR, HU, LV, ME, MK, PL, SI;
International registration thereof No. 698768 claiming priority of February 24, 1997 and protected in BA, DE, HR, HU, LV, ME, MK, PL, RS, SI;
International registration thereof No. 698767 euro AWK claiming priority of February 24, 1997 and protected in BA, DE, HR, HU, LV, ME, MK, PL, RS, RU, SI.
The Complaint also possesses community trademark (euro AWK) registration No. 12704 claiming priority of March 5, 1996.
Euro AWK owns the domain name .
The disputed domain name was created on February 10, 2004. 5. Parties' Contentions A. the Complainant
The Complainant claims that:
The domain name is confusingly similar to the trademarks euro AWK owned by the Complainant. According to the Complainant, the domain name owned by the Respondents is clearly identical to the word elements of its trademark euro AWK. Furthermore, in the Complainant's view the Respondents have no rights or legitimate interests in the domain name, as they are not using the domain name for a bona fide offering of goods or services. The web page contains only a notice that the domain name is for sale. Moreover the Complainant indicated that the Respondents use the domain name for a “click-through “website, which displays different kinds of sponsored links to websites of entities not related to the Complainant.
A warning letter sent by registered e-mail on November 2, 2009 and anticipated by e-mail was not answered, thus confirming Respondents' unwillingness to deal fairly with the euro AWK trademark rights.
The Complainant has filed its Complaint in order to protect its marks and halt the Respondents' conduct. B. Respondents
The Respondents did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has proven that the contested domain name is identical or confusing similar to the name, trademarks and service marks of the Complainant.
The confusing similarity of the disputed domain name to the Complainant's trademarks and service marks is apparent from a simple visual comparison. The disputed domain name is a replica of the Complainant's name and marks. The phrase “” does not have any generic meaning in any European language.
The disputed domain name is similar to trademarks owned legally by the Complainant. This is sufficient to satisfy the requirement that the domain name in question be confusingly similar to a mark in which the Complainant has rights.
The Panel therefore finds that the domain name is confusingly similar to Complainants' trademark and as a consequence, the action brought by the Complainants meets the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
From the evidence submitted before the Panel it is clear to this Panel that the Respondents have no rights or legitimate interests in respect of the domain name.
The Respondents are not the Complainant's licensee in any respect, nor are the Respondents authorized to use the Complainant's marks. The Respondents have not been commonly known by the contested domain name, nor do the Respondents run any enterprise commonly or legitimately known by the contested domain name. There is no evidence of the Respondents' use of, or demonstrable preparation to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. The question of “legitimate interest” cannot be disassociated from how similar to the trademark the domain name is. When the domain name's confusing similarity to the trademark is so obvious, the choice to register such a domain name is most likely not “legitimate”.
There is no evidence that the Respondents are making a legitimate non-commercial or fair use of the domain name. The Respondents were also given the opportunity to contest the case against them. However, the Respondents chose not to participate in these proceedings or submit any evidence that would demonstrate that they have any rights to, or legitimate interests in the domain name . The Panel therefore infers from the Respondents' silence and Complainant's contentions that the Respondents have no serious arguments to prove their rights to, or legitimate interests in the domain name . The Panel considers the requirement of paragraph 4(a)(ii) of the Policy fulfilled. C. Registered and Used in Bad Faith
The Complainant is the owner of many trademarks including the term “euroawk”.
The domain name is used passively in bad faith. The Respondents do not use the domain name, it is owned by the Respondents most likely with the aim of selling it. In other words, no positive action is being undertaken by the Respondents in relation to the domain name [see. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003].
Paragraph 4(b) of the Policy sets out four circumstances, without limitation, that demonstrate bad faith including that “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
In the absence of evidence to the contrary, the Panel finds that the Respondents knew of or should have known of the Complainant's trademark and services at the time the Respondents registered the Domain name.
As such, on the record the Panel finds on balance that the domain name was registered and is used by the Respondents in bad faith and considers the requirements of paragraph 4(a)(iii) of the Policy to be fulfilled. 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.
Piotr Nowaczyk
Sole Panelist
Dated: March 10, 2010
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