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V&S Vin & Sprit Aktiebolag v. Gunnar Hedenlans Peev [2000] GENDND 861 (9 August 2000)

National Arbitration Forum

DECISION

V&S Vin & Sprit Aktiebolag v. Gunnar Hedenlans Peev

Claim Number: FA0006000095078

PARTIES

The Complainant is V&S Vin & Sprit Aktiebolag, Stockholm, Sweden ("Complainant"). The Respondent is Gunnar Hedenlans Peev, Stockholm, Sweden, ("Respondent").

REGISTRAR AND DISPUTED DOMAIN NAME(s)

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

PANELIST(s)

The Panelist certifies that he or she has acted independently and impartially and to the best of his or her 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 06/26/2000, NSI confirmed by e-mail to The Forum that the domain name "ABSOLUTCITRON.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 4.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANNís UDRP.

On 07/10/2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of 07/31/2000 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 07/31/2000, 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 August 7, 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.

FINDINGS

The Complainant owns several U.S. trademark registrations encompassing the term ABSOLUT for the sale of vodka. The Complainant also owns a trademark containing the term ABSOLUT COUNTRY OF SWEDEN CITRON (Registered 04/03/1990; No. 1,590,115). The marks have been in use by the Complainant and its predecessor since 05/03/1978. The Complainant uses the domain name, <absolutvodka.com>, to sell its products on the Internet.

On 02/08/2000, Counsel for the Complainant notified the Respondent that his registration of the said domain name violated the Complainantís trademark rights. The Respondent responded to this letter on 02/14/2000 stating that he intended to use the domain name to create a detailed information site about lemons and cooking.

The Respondent owns other domain names that infringe on the trademarks of other companies in the alcoholic beverage industry. For example, the Respondent owns <heineken.org>, <premiumbrands.com>, and <heinekenbeer.com>.

The Respondent registered the domain name on 08/14/1997. The Respondent has not used the domain name or corresponding website since registration of the domain name.

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.

As a result of the Respondentís failure to respond, all reasonable inferences of fact in the Complaint will be deemed true. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint").

The Complainant has rights in the registered marks containing the term ABSOLUT and the mark ABSOLUT COUNTRY OF SWEDEN CITRON. In the Complainantís mark, the words "Country of Sweden" appear in thin script text, while the words "Absolut Citron" are in bold block text. Consumers commonly refer to the product as "Absolut Citron".

The Respondentís domain name contains the principal part of the Complainantís marks, the words Absolut and Citron. The Respondentís domain name is identical to and/or confusingly similar to the Complainantís marks. See Wal-Mart Stores, Inc. v. Walmarket Canada, D2000-0150 (WIPO May 2, 2000) (finding that the domain name, <walmartcanada.com> is confusingly similar to Complainantís famous mark).

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 has made no use of the domain name in connection with a bona fide offering of goods and services. Policy  4(c)(i). The Respondent made no use of the domain name in connection with a "lemons and cooking" website before any notice of the dispute. After notice of the dispute, the Respondent did not make any demonstrable preparations to use the domain name.

The Respondent is not commonly known by the domain name, which encompasses the Complainantís famous marks. Policy  4(c)(ii).

The Respondent has not made a legitimate noncommercial or fair use of the domain name in question. Policy  4(c)(iii).

The panel concludes that the Respondent has no rights or legitimate interest in the domain name in question.

The Complainant asserts that the Respondent registered and used the domain name in bad faith. The Respondent has not denied that assertion.

The Respondent registered the domain name to prevent the Complainant from reflecting the mark in a domain name. Policy  4(b)(ii). The Respondent has engaged in a pattern of conduct by registering many domain names associated with alcoholic beverage companies. Policy  4(b)(ii). Although the Respondent declared in correspondence with the Complainant that he registered the domain name for a site devoted to cooking with lemons, the Respondent made no such legitimate use of the domain name in the three years since registration. Passive holding of the domain name with the knowledge that it infringes on a trademark of another is evidence of bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

The Respondent concludes that the domain name was registered and used 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, "ABSOLUTCITRON.COM" be transferred from the Respondent to the Complainant.

Judge Harold Kalina (Ret.)

Dated: August 9, 2000