WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Krone Verlag GmbH & Co KG v. Tobias Krause
Case No. DTV2002-0007
1. The Parties
1.1. The Complainant is Krone Verlag GmbH & Co. KG, having its place of business at Vienna, Austria.
1.2. The Respondent is Tobias Krause, an individual having an address at 5200 Baden, Austria.
2. The Domain Names and Registrar
The domain names at issue are and , both registered with the .tv Corporation International, 10 Universal City Plaza, 10th Floor, Universal City, CA, USA (the "Registrar"), having voluntarily adopted the Uniform Domain Name Dispute Resolution Policy (the "Policy").
3. Procedural History
3.1. The Complaint was filed with the World Intellectual Property Organization Arbitration and Mediation Center ("the Center") and received on October 31, 2002, (e-mail) and November 6, 2002, (hard copy); the Center confirmed receipt on November 1, 2002.
3.2. A request for Registrar�s confirmation was issued by the Center as of November 1, 2002, a positive verification response was received on November 6, 2002.
3.3. On November 7, 2002, after having verified that the Complaint is in line with the requirements of the WIPO 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") the Center sent the Notification of Complaint and Commencement of Administrative Proceedings to Respondent.
3.4. Respondent failed to submit his Response within the requested deadline; thus, the Center issued a Notification of Respondents Default on November 29, 2002.
3.5. On December 6, 2002, the Center invited the undersigned to serve as a panelist in the Administrative Proceedings and, on December 11, 2002, appointed the Administrative Panel and transmitted the Case File.
3.6. The Panel, after having verified all documents, agrees with the Center's assessment on the compliance of the Complaint with the formal requirements.
4. Factual Background
Complainant is owner of the Austrian daily newspaper "Kronen Zeitung", with a market share of 44,1% (weekdays) and of 53,8% (Sundays). The newspaper includes a television section (minimum five pages), and also offers a weekly television supplement called "TV-Woche", which achieves a market share of 42,9%.
Complainant has registered various trademarks with the Austrian Patent Office including the words "Kronen Zeitung" and "Krone" respectively, namely:
Reg.No.
Mark
class
007587
Kronenzeitung
16
007588
Kronen Illustrierte Zeitung
16
059131
Kleine Kronen Zeitung
16
059132
Neue Kronen Zeitung
16
059133
Grosse Kronen Zeitung
16
063653
Unabhaengige Kronen Zeitung
16
093727
Wiener Krone
16
093728
Oberoesterreich Krone
16
093729
Salzburg Krone
16
093730
Tiroler Krone
16
093731
Vorarlberger Krone
16
093732
Steirer Krone
16
093733
Burgenlaender Krone
16
093734
Niederoesterreich Krone
16
096783
Kaertner Krone
16
188586
Senioren Krone
16, 41, 42
188587
Neue Senioren Krone
16, 41, 42
192090
Kronen Zeitung Unabhaengig
16, 41, 42
Due to the exceptional market share of the newspaper and due to the widespread use of the above trademarks the terms "Krone" and "Kronenzeitung" are notorious in Austria.
"Kronen Zeitung" also has a www-appearance under the domain names and . The domain links to the website on , which has over 200 million page impressions and 6 million visits per month, which is a market share of 35 % in the media market. The online-service under is read by more than 1 million people regularly.
Krone Multimedia GmbH & Co KG on behalf of the Complainant has registered � among others � the domains , , .
Respondent has registered and in June and July 2000. He offered for sale the domain names in dispute to Krone Multimedia GmbH & Co KG with e-mail of June 10, 2002. Claiming having registered the domain names for more than USD 15.000 Respondent offered a transfer for USD 30.000.
5. Parties' Contentions
5.1. Complainant submits that the domain names are identical/confusingly similar to Complainant�s various trademarks, that Respondent has no right or legitimate interest in the domain names and has registered/is using these domain names in bad faith.
5.2. Respondent has not filed a response, thus not contesting the facts brought forward by Complainant and the conclusions which Complainant asserts can be drawn from these facts. In accordance with paragraph 14(b) of the Rules the Panel shall decide on basis of Complainant�s submissions and shall draw all such interference therefrom as it considers appropriate.
6. Discussions and Findings
6.1. Confusing Similarity/Identity
The domain in dispute is identical with Complainant�s trademark . 7587 "Kronenzeitung" and confusingly similar to Complainant�s various other trademarks. The domain in dispute incorporates identically the distinctive part of Complainant�s various trademarks (serving as stem for a series of marks) and thus gives rise to confusing similarity.
Therefore, Panel concludes that the domains in dispute are identical with/confusingly similar to several trademarks in which the Complainant has rights.
6.2. Legitimate rights or interests in respect of the domain names
Neither is Respondent affiliated with Complainant, nor has Complainant consented to Respondent�s registration of the domain names in dispute.
Respondent does not use the domain names for his own legitimate commercial or non-commercial activities and has not demonstrated any preparations in this regard. These circumstances are sufficient to consider prima facie evidence to show the absence of rights or legitimate interests in the disputed domain names on part of Respondent. The burden of proof thus shifts to Respondent to show by concrete evidence that he does have such rights/legitimate interests.
In absence of any submission by Respondent, Panel therefore concludes, that no such rights or interests are existing on behalf of Respondent.
6.3. Bad faith Registration and Use
It can not seriously be denied that Respondent had actual knowledge of the fact that Complainant is not only selling its newspaper under the title "Kronen Zeitung", promoting it under and but is also owner of several trademarks in this conjunction. As Complainant has shown, its trademarks are of highest notoriety in Austria due to the fact that the newspaper "Kronen Zeitung" is read by nearly every second Austrian, thus making it the world-biggest newspaper in terms of percentage of readers.
According to paragraph 4 (b)(i) of the Policy circumstances indicating that a domain name was registered primarily for the purpose of selling it to the owner of identical/confusingly similar trademarks for valuable consideration in excess of actual out-of-pocket expenses constitute evidence for registration and use in bad faith. Complainant has adduced evidence � which has not been contested by Respondent � according to which Respondent has tried to sell to Complainant the domains in dispute for out-of-pocket expenses plus an additional 100% surcharge (the reason for which Respondent failed to disclose in his correspondence with Complainant). Under these circumstances, the conclusion is inescapable, that Respondent has registered and used the domains in dispute in bad faith, with the purpose of selling them for valuable compensation.
In absence of any submission by Respondent contesting the facts brought forward by Complainant in conjunction with the offer to sell the domain names with a 100% surcharge, Panel finds that the condition of paragraph 4 (a) (iii) of the Policy is fulfilled.
7. Decision
Pursuant to paragraphs 4(i) of the Policy and 15 of the Rules, the Panel directs that the domain names and be transferred to Complainant.
Dr. Christian Gassauer-Fleissner
Sole Panelist
Dated: December 24, 2002
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