Generic Top Level Domain Name (gTLD) Decisions

Complainant is V&S Vin & Sprit Aktiebolag, Stockholm, SWEDEN ("Complainant") represented by Joanne Ludovici-Lint, of McDermott, Will & Emery. Respondent is Spion Network, Halmstad, Halland, SWEDEN ("Respondent").

The domain name at issue is "absolut-vodka.com" registered with Network Solutions.

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as a panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 2, 2001; the Forum received a hard copy of the Complaint on February 5, 2001.

On February 12, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name "absolut-vodka.com" is registered with Network Solutions and that the Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On February 16, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 8, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@absolut-vodka.com by e-mail.

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 March 20, 2001, pursuant to Complainant’s request to have the dispute decided by a one member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from the Respondent.

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

A. Complainant

Complainant alleges the following:

B. Respondent

Respondent has not submitted a response in this matter.

Complainant V & S Vin & Sprit Aktiebolag owns the registered mark ABSOLUT VODKA, which it has used since 1978 in connection with the advertising and sale of a variety of products and services. Complainant also owns registrations for the mark ABSOLUT in 130 countries throughout the world, which it uses in conjunction with several Internet web sites including absolutvodka.com and absolut.com. Complainant has spent substantial sums of money advertising and promoting its mark and as a result has achieved enormous success.

Respondent, Spion Network, is not known by the domain name at issue as a business, individual or otherwise. Currently, Respondent is using the disputed domain name to sell web based email accounts and banner advertisements.

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(2) 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.

Complainant’s rights are evidenced by its registered mark, ABSOLUT VODKA. Respondent’s domain name, absolut-vodka.com, is confusingly similar to Complainant’s well-established mark because the only difference is that a hyphen has been inserted. See General Electric Co. v. Bakhit, D2000-0386 (WIPO June 22, 2000) (finding that placing a hyphen in domain name between "General" and "Electric" is confusingly similar to Complainant’s mark); CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that putting a hyphen between words of the Complainant’s mark is identical to and confusingly similar to Complainant’ s mark); see also Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s web site, think that an affiliation of some sort exists between Complainant and Respondent, when in fact, no such relationship would exist).

The Panel finds that the domain name in issue is identical to or confusingly similar to Complainant’s well-known mark. Policy ¶ 4(a)(i).

Complainant has established rights in the mark used to create the domain name in issue. Respondent has asserted no rights and has shown no rights to or legitimate interests in the disputed domain name. In fact, Respondent is using the disputed domain name to divert Internet traffic to its own web site, using a domain name that infringes upon the mark of another. This is not a bona fide, legitimate use. See Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own web site by using Complainant’s trademarks); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own web site.)

Respondent is not commonly known by the mark contained in the domain name at issue. See Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding that Respondent is not commonly known by the mark contained in the domain name where Complainant has not permitted Respondent to use the NOKIA mark and no other facts or elements can justify prior rights or a legitimate connection to the names "Nokia" and/or "wwwNokia").

Moreover, Respondent asserted no rights or legitimate interests in the disputed domain name. Consequently, the Panel is free to conclude Respondent has no such rights or legitimate interests in the disputed domain name. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by the Complainant that the Respondent has no right or legitimate interest is sufficient to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest does exist); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

The Panel finds that Complainant has rights to and interests in the mark contained within the domain name in issue and that Respondent has none. Policy ¶ 4(a)(ii)

The evidence supports the conclusion that Respondent registered the domain name at issue intentionally to attract Internet users to its web site, strictly for commercial gain, utilizing a likelihood of confusion with Complainant’s famous mark to obtain personal gain. This is evidence of bad faith. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the Complainant’s well known marks, thus creating a likelihood of confusion strictly for commercial gain); see also America Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent attracted users to a web site sponsored by Respondent).

Further, the international recognition afforded Complainant’s mark permits the conclusion that Respondent knew or had constructive notice of Complainant’s famous mark prior to registering the disputed domain name. See Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that Respondent demonstrated bad faith where Respondent was aware of the Complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the "totality of circumstances").

The Panel finds that Respondent registered and used the domain name in issue in bad faith. Policy ¶ 4(a)(iii).

Having established all three elements under ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain name, absolut-vodka.com, be transferred from Respondent to Complainant.