WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Kreidler Zweiradgesellschaft mbH v. Web Master Internet Services Private Limited Case No. D2010-0222 1. The Parties
The Complainant is Kreidler Zweiradgesellschaft mbH of Oldenburg, Germany, represented by von Ahsen, Nachtwey & Kollegen, Germany.
The Respondent is Web Master Internet Services Private Limited of Maharashtra, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 15, 2010. On February 15, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On February 25, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR 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 March 1, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 3, 2010. The Center verified that the amended 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 March 5, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 25, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 26, 2010.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on April 1, 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 factual background is taken from information submitted by the Complainant.
The Complainant conducts business in the field of motor cycles, bicycles and vehicles. Its full name Kreidler Zweiradgesellschaft mbH translates to Kreidler Bike private limited company. The Complainant or preceding owners of the rights to the name KREIDLER have produced motor cycles and other vehicles since 1903. In 1965 and 1977 Kreidler motor cycles set certain world speed records. The trademark is well known, there is a museum devoted to the Company's products, and there is a fan club.
Trademarks owned by the Complainant include:
KREIDLER, registration number 790177, registered June 25, 1964 at the German patent and trademark office;
KREIDLER, registration number 1623317, applied for November 21, 2007, registered at the Indian Ministry of Commerce and Industry.
Nothing is known about the Respondent. The disputed domain name appears to have been registered on May 27, 1997. 5. Parties' Contentions A. Complainant
The Complainant submits documentation in support of its ownership of the trademark KREIDLER in Germany, a number of European countries and India, in the form of copies of verification documents from the relevant registries.
The Complainant contends that the disputed domain name is confusingly similar to its trademark KREIDLER because the distinctive part of is “kreidler”.
The Complainant further contends that the Respondent does not have rights or legitimate interests in the disputed domain name. Research has failed to find any other legitimate use of the trademark KREIDLER than the Complainant's. The Complainant has not permitted the Respondent to use the trademark in any way. The website to which the disputed domain name resolves does not demonstrate any right or legitimate interest by the Respondent. It is in the German language, announces the disputed domain name to be for sale, and is occupied with material relating to motor cycles.
The Complainant further contends that the disputed domain name has been registered and is used in bad faith. Specifically, it is offered for sale through Sedo, and is being used in the interim as a source of revenue for the Respondent by carrying advertising links provided by the Sedo domain parking program.
Furthermore, the price asked by the Respondent for the disputed domain name was in excess of registration costs. An approach by the Complainant through an intermediary offering EUR 1,000.00 was met with a response on the Respondent's buyer control panel that implied an asking price of EUR 12,500.00. A letter faxed to the registration address of the Respondent on February 5, 2010, set out the Complainant's legal position and made an offer to purchase the disputed domain name for EUR 1,100.00. The Respondent's Sedo account relating to the disputed domain name subsequently stated “last bid EUR 12,500.00”. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required:
“…to submit to a mandatory administrative proceeding in the event that a third party (a ‘complainant') asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainant has made the relevant assertions as above. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. A. Identical or Confusingly Similar
On the basis of the evidence submitted by the Complainant, the Panel accepts that the Complainant has rights in the registered trademark KREIDLER.
The disputed domain name is found by the Panel to be identical to the Complainant's trademark KREIDLER, the gTLD directory identifier “.com” being of no consequence in the determination of confusing similarity within the meaning of the Policy. The Panel finds for the Complainant in the terms of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant states in evidence that on the basis of its enquiries the Respondent does not have any legitimate interest in the disputed domain name. The Respondent has not been granted permission to use the Complainant's trademark for any purpose. No legitimate interest in the disputed domain name is demonstrated by the Respondent on the website to which it resolves, but rather, the website demonstrates non-legitimate use of the Complainant's trademark without authority.
The Respondent has not availed itself of the opportunity presented by paragraph 4(c) of the Policy to refute the Complainant's prima facie case made out under paragraph 4(a)(ii) of the Policy. The Panel cannot find any grounds upon which the Respondent might establish rights or legitimate interests in the disputed domain name. The Panel finds for the Complainant in the terms of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant is required to prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) 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 web site or location or of a product or service on your website or location.
According to the evidence including screenshots of the Respondent's website submitted by the Complainant, the disputed domain name is offered for sale on the open market. Offers by the Complainant to buy the disputed domain name for EUR 1,000.00 (through an intermediary) and EUR 1,100.00 were not accepted by the Respondent, which has maintained an asking price of EUR 12,500.00. Taking into account the scale of the Respondent's asking price and the findings above that the disputed domain name comprises the Complainant's trademark KREIDLER in which the Respondent does not have rights, the circumstances satisfy the Panel on the balance of probabilities that the disputed domain name was registered and used primarily for the purpose of its ultimate sale to the Complainant or a competitor of the Complainant for valuable consideration in excess of the costs of registration. The Panel finds for the Complainant in the terms of paragraph 4(b)(i) of the Policy.
The evidence of the current usage of the disputed domain name, supported by screenshots submitted by the Complainant, shows that the corresponding website is set up to generate revenue for the Respondent by the familiar device of displaying advertising links placed by a third party. It may reasonably be concluded on the balance of probabilities that the Respondent receives a fee when a viewer clicks on an advertising link. In and of itself, the display of revenue-earning advertisements or links is not necessarily an illegitimate activity. At least some Internet users seeking the Complainant's trademarked name, however, are likely to find their way to the website of the disputed domain name and, on finding that it has content related to motor cycles and is in the German language, may be confused into thinking, at least initially, that the website is operated or endorsed by the Complainant. Thus the Respondent will have made a commercial gain by exploiting the Complainant's well-known trademark. The Panel finds the Respondent's activities to constitute bad faith registration and use of the disputed domain name in the terms of paragraph 4(b)(iv) 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.
Dr. Clive N.A. Trotman
Sole Panelist
Dated: April 15, 2010
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