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V&S Vin & Sprit Aktiebolag v. Tyler Kownacki [2000] GENDND 847 (8 August 2000)

National Arbitration Forum

DECISION

V&S Vin & Sprit Aktiebolag v Tyler Kownacki

Claim Number: FA0006000095079

PARTIES

The Complainant is V&S Vin & Sprit Aktiebolag, Stockholm, Sweden, ("Complainant"). The Respondent is Tyler Kownacki, Waterford, MI, USA ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s)

The domain name at issue is "ABSOLUTMANDRIN.COM", registered with Network Solutions Inc ("NSI").

PANELIST(s)

The Panelist certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as the panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on 06/26/2000; The Forum received a hard copy of the Complaint on 06/26/2000.

On 06/30/2000, NSI confirmed by e-mail to The Forum that the domain name "ABSOLUTMANDRIN.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.

On 07/05/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/25/2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondentís registration as technical, administrative and billing contacts by email.

On 07/25/2000, having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, The Forum transmitted to the parties a Notification of Respondent Default.

On July 28, 2000, pursuant to Complainantís request to have the dispute decided by a Single Member panel, The Forum appointed Judge Harold Kalina (Ret.) as Panelist.

Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, The Forumís Supplemental Rules and any rules and principles of law that the panel deems applicable, without the benefit of any Response from the Respondent.

RELIEF SOUGHT

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

PARTIESí CONTENTIONS

A. Complainant

The Complainant contends that the Respondent has registered a domain name that is identical to and confusingly similar to its trademark registered for and in use by the Complainant. Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name, and that the respondent has registered and is using the domain name in bad faith.

1. Respondent

The Respondent submitted no response in this matter. As a result, all reasonable inferences of fact in the allegation of the Complainant will be deemed true.

FINDINGS

The Complainant owns several U.S. trademark registrations encompassing the term ABSOLUT. The Complainant also has four trademark applications pending including the mark ABSOLUT MANDRIN (No. 75/555188, 75/616228, 75/616227, 75/555423). Two of these applications have been approved for publication. The Complainant uses these marks in connection with the sale of vodka and flavored vodka. The Complainant uses the domain name, <absolutvodka.com>, to sell its products on the Internet.

The Respondent registered the domain name on 12/21/1999. Since this time, the website located at this domain name has remained inactive.

On February 16, 2000, the Complainant notified the Respondent that his registration of the said domain name violated the Complainantís trademark rights. The Respondent did not respond to this letter.

DISCUSSION

Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") directs that the complainant must prove each of the following three elements to support a claim that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent 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 domain name; and

(3) the domain name has been registered and is being used in bad faith.

The Complainant has rights in the registered mark, ABSOLUT, and the pending trademark registration, ABSOLUT MANDRIN. The Respondentís domain name is identical to the Complainantís marks. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Complainant asserts that the Respondent has no rights or legitimate interests in the domain names in question. The Respondent has not denied that assertion.

The Respondent is not commonly known by the domain name in question. Policy  4(c)(ii). The Respondent has not claimed to use the domain name in connection with any bona fide offering of goods or services nor for any legitimate or fair noncommercial use. Policy  4(c)(i), (iii). See Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because the Respondent never submitted a response nor provided the panel with evidence to suggest otherwise). The panel concludes that the Respondent has no rights or legitimate interests in the domain name in question.

The Complainant asserts that the Respondent acted and is acting in bad faith. The Respondent has not denied that assertion.

The Complainant and its predecessors have been using the mark ABSOLUT since 1978 for the sale of vodka. Upon registering the domain name, the Respondent knew or should have known of the Complainantís famous marks. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding that the domain name in question is "so obviously connected with the Complainant and its products that its very use by someone with no connection with the Complainant suggests opportunistic bad faith).

The Respondent has not developed the website located at the domain name in question. Passive holding of a domain name is evidence of bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

Based on the above, the panel concludes that the Respondent registered and used the domain name in bad faith.

DECISION

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "ABSOLUTMANDRIN.COM" be transferred from the Respondent to the Complainant.

___________________________________________________

Judge Harold Kalina (Ret.)

Dated: August 8, 2000