WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Mejeriforeningen Danish Dairy Board v. Cykon Technology Limited Case No. D2010-0776 1. The Parties
The Complainant is Mejeriforeningen Danish Dairy Board of Aarhus C, Denmark, represented by Lett Law Firm, Denmark.
The Respondent is Cykon Technology Limited of Hong Kong, SAR of People's Republic of China, appearing pro se. 2. The Domain Name and Registrar
The disputed domain name is registered with Go China Domains, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2010. On May 17, 2010, the Center transmitted by email to Go China Domains, Inc. a request for registrar verification in connection with the disputed domain name. On May 17, 2010, Go China Domains, Inc. 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 May 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 7, 2010. The due date was extended upon the Respondent's request to June 21, 2010. The Response was filed with the Center on June 21, 2010.
The Center appointed Sir Ian Barker as the sole panelist in this matter on July 5, 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.
Without offering any other reason for seeking to file a Supplemental Filing, the Complainant sought to do so on June 23, 2001 “in order to respond to some of the Respondent[']s arguments in the response letter”. The Respondent opposed the application and itself sought to make a Supplemental Filing.
The Panel does not consider that the Complainant's application to file a Supplemental Filing is justified since no proper reason was advanced and therefore declines to accept it. The Respondent's Supplemental Filing will be treated similarly.
Parties should realise that there is no absolute right under the Rules to file Supplemental Filings. The situation in this case is similar to that in Lloyds TSB Bank PLC v. Daniel Carmel-Brown,WIPO Case No. D2008-1889 where the panel said in words which this Panel adopts with gratitude:
“The Center has rightly put before the Panel for consideration (or otherwise) at its discretion under the Rules the Complainant's unsolicited Supplemental Filings and email in response received from the Respondent. In The E.W. Scripps Company v. Sinologic Industries,WIPO Case No. D2003-0447, this Panel summarised the position regarding supplemental filings in proceedings under the Policy in the following terms:
[‘]Under the Policy and the Rules, parties have no right to submit additional arguments or evidence. However, the Panel may, in its sole discretion, request further statements or documents from the parties under paragraph 10 of the Rules; and a party's request may be regarded as an invitation to the Panel to exercise this discretion.
The principles which should be applied in exercising this discretion have been considered in numerous cases decided under the Policy and Rules. The principles adopted and confirmed in these decisions are that additional evidence or submissions should only be admitted in exceptional circumstances, such as where the party could not reasonably have known the existence or relevance of the further material when it made its primary submission; that if further material is admitted, it should be limited so as to minimise prejudice to the other party or the procedure; and that the reasons why the Panel is invited to consider the further material should, so far as practicable, be set out separately from the material itself.
These principles are based on the purpose of the Policy and Rules of providing an expeditious and relatively inexpensive procedure for determining a certain type of domain name dispute, in which each party is entitled to make just one submission. One of the matters which the Panel has to bear in mind is that the admission of a further submission from one party may lead the other party to submit a further document in reply, which may lead to a further submission by the first party, and so on, thereby compromising the procedural economy sought to be established by the Policy and the Rules.[']” 4. Factual Background
The Complainant is the central organisation of the Danish dairy industry promoting the commercial interests of the Danish dairy industry in Denmark and abroad. The Complainant has acquired trademarks throughout the world for the name LURPAK as a collective mark to be used by the Danish dairy industry.
The trademark is registered worldwide, including in Hong Kong, SAR of China (“Hong Kong”) where the Respondent is located. The Complainant has used the mark since 1957 and applied for trademark registration in Denmark in 1961.
The Complainant also uses the domain name as part of its business operations and has used this domain since 1996.
The disputed domain name was registered on January 11, 2010. The website accessed by the disputed domain name resolves to a site offering for sale a variety of goods and services, none of them connected with the dairy industry. 5. Parties' Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant's well-known trademark and corresponding domain name. The omission of the letter “k” from the disputed domain name is insufficient to create a substantial difference between the two names. When comparing the disputed domain name and the trademark, emphasis should be placed on the similarity between the beginning of the trademark. An Internet user wishing to visit the Complainant's website could easily mis-type and instead enter the disputed domain name. There is a high likelihood of confusion between the Complainant's trademark and the disputed domain name.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant gave it no rights. The Respondent is not producing any products under the disputed domain name which resolves to a website containing links to other websites offering various items for sale.
The disputed domain name was registered and is being used in bad faith. It is intentionally being used to attract Internet users to its website for commercial gain. Many Internet users typing the disputed domain name have no intention of visiting the Respondent's website as they wish to visit the Complainant's website. The Respondent has registered thousands of other domain names which fact indicates the registration is made in bad faith. B. Respondent
The two words “lurpak” and “lurpa” are neither phonetically similar nor pronounced similarly. The letter “k” is not silent. Construing the two words, most people would identify the word “lurpak” as a combination of two words, whereas “lurpa” would be considered a single word.
The Respondent created the word “lurpa” as a name similar to its company name of Cykon, used as a brand to promote its various online services.
There is no evidence to show that the Respondent was aware of the Complainant's rights in the word “lurpak” at the time it registered the disputed domain name other than an assertion that LURPAK is a well-known trademark. The Respondent is in Hong Kong, far from Denmark, and has never been a competitor of the Complainant. The Respondent is a company specializing in website development with online services.
The Respondent registered the disputed domain name as it prepared for the upcoming launch of a new online service. At the time of the receipt of the Complaint, the Respondent was in the process of changing domain name settings and configuring the web server for a new website.
There is no evidence to support the Complainant's allegation that the Respondent's use of the disputed domain name for its website would mislead consumers or tarnish the Complainant's mark for commercial gain. The Respondent is using the disputed domain name genuinely and legitimately with no intent to drive business away from the Complainant. The Respondent denies that the disputed domain name was registered and is being used in bad faith.
The Respondent denies that it has no legitimate interest in the disputed domain name. It does not intentionally attempt to attract users to its website for its own commercial gain. Its website has no similarity to the Complainant's and its businesses are in completely different sectors, i.e., dairy products versus online services.
There is no evidence that the Respondent is engaged in the practice of registering domain names for the purpose of selling them to trademark owners. It is a company specializing in website development and IT services and from time to time domain names and websites are registered and created for its own use or that of its clients.
The Respondent has never offered to sell the disputed domain name. In any event, regularly buying and selling domain names is not, of itself, illegitimate or indicative of bad faith. There is no evidence of the Respondent having engaged in a pattern of bad faith registration of domain names for the purpose of selling them. Nor does the Respondent intend to attempt to attract users to its website by creating a likelihood of confusion. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(3) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
In the Panel's view, the disputed domain name is confusingly similar to the Complainant's worldwide trademarks, although there is one letter difference between the two names. Neither name is generic nor represents an accepted word. Both names are made-up.
The question under paragraph 4(a)(i) of the Policy is simply whether the alphanumeric string comprising the disputed domain name is identical to the Complainant's mark or sufficiently approximates it, visually or phonetically, so that the disputed domain name on its face is “confusingly similar” to the Complainant's mark.
Initial confusion by an Internet user when seeing or typing the disputed domain name is the focus of paragraph 4(a)(i). It is the simple appearance of similarity – to an Internet user – than can make the disputed domain name confusingly similar to the trademark. See Advance Magazine Publishers Inc. d/b/a Condé Nast Publications v. MSA, Inc. and Moniker Privacy Services,WIPO Case No. D2007-1743.
A case of some similarity to the present is The Nasdaq Stock Market, Inc. v NSDAQ.COM, NASDQ.COM and NASAQ.COM,WIPO Case No. D2001-1492. There, the disputed domain names had one letter fewer than those in the trademark. The complainant had demonstrated that its trademark was well-known globally. The panel observed “[q]uite clearly, the Respondents have sought to take advantage of internet users typing an incorrect address when seeking to access the Complainant's website, a practice dubbed ‘typosquatting' and condemned in a number of WIPO panel decisions”.
In the Panel's view, the disputed domain name is sufficiently proximate, both visually and phonetically, as to be confusingly similar to the Complainant's mark. The Complainant has satisfied Paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant gave the Respondent no right to use its trademark in a domain name and has demonstrated its prima facie case that the Respondent has no rights or legitimate interests with respect to the disputed domain name. Accordingly, the onus shifts to the Respondent to show that it comes within one of the exceptions in paragraph 4(c) of the Policy, or demonstrate other evidence of its rights or legitimate interests.
The only example in paragraph 4(a) of the Policy which might be applicable here is paragraph 4(c)(i), which requires the Respondent to show that it used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services before receiving notice of the Complaint.
The evidence provided by the Respondent was brief. It merely stated that it is preparing for the upcoming launch of a new online service and that it is changing domain name settings. No documentary proof, no declaration under penalty was offered to indicate that the process of changing the domain name settings and reconfiguring the server was taking place.
In the Panel's view, the Respondent has not demonstrated that the exception provided by paragraph 4(c)(i) of the Policy applies to it. No “demonstrable preparations” to use the disputed domain name in a bona fide manner were shown.
Accordingly, paragraph 4(a)(ii) of the Policy has been established. C. Registered and Used in Bad Faith
The Complainant has shown that it has worldwide coverage of its mark, and has obtained trademark protection throughout the world for Danish dairy products, including in Hong Kong where the Respondent is based.
There are authorities in the jurisprudence under the Policy to suggest that a respondent in Country A is not necessarily expected to know of the existence of a trademark in Country B and therefore cannot be presumed to have registered its domain name in bad faith.
In the circumstances of this particular case, however, the similarity between the disputed domain name and the registered mark renders a presumption of bad faith likely. There was no explanation from the Respondent of the choice of the disputed domain name.
The global fame of the Complainant's mark has not been demonstrated with the detail one would have expected. However, the Panel can take judicial notice that Denmark is one of the world's major dairy exporting countries. Moreover, the disputed domain name is not a generic term but a made-up word. The disputed domain name is just too close to the real thing, i.e., the Complainant's trademark which is also a made-up word.
Moreover, the use of the disputed domain name to display the Respondent's website for selling a variety of items, is relevant to the issue of registering the disputed domain name to attract commercial gain. Perhaps the most relevant consideration here is the “typosquatting” inference that comes from the confusing similarity discussed earlier.
The likelihood of confusion with the Complainant's mark brings into play paragraph 4(b)(iv) of the Policy, namely that the Respondent's website intentionally attracts users for commercial gain by creating a likelihood of confusion with the Complainant's mark. See the Advanced Magazine Publishers case, supra, and the authorities there mentioned on “typosquatting” being evidence of bad faith registration and use. See also the Nasdaq case, supra, on the same point.
Accordingly, the Panel considers that paragraph 4(a)(iii) of the Policy has been established.
The Panel does not derive any assistance from the Complainant's bare assertion that the Respondent has registered thousands of domain names. That assertion on its own is insufficient to justify any pejorative inference. 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.
Sir Ian Barker
Sole Panelist
Dated: July 14, 2010
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