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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

V&S Vin&Sprit AB v. Coreswood Limited

Case No. D2006-0594

 

1. The Parties

The Complainant is V&S Vin&Sprit AB, Stockholm, Sweden, represented by Melbourne IT Corporate Brand Services AB, Stockholm, Sweden.

The Respondent is Coreswood Limited, Nicosia, Cyprus.

 

2. The Domain Name and Registrar

The disputed domain name <absolut-escort.com> is registered with Intercosmos Media Group d/b/a directNIC.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 10, 2006. On May 11, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On May 11, 2006, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 7, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 11, 2006.

The Center appointed Peter Nitter as the sole panelist in this matter on July 4, 2006. 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.

 

4. Factual Background

The Complainant is the owner of the trademark ABSOLUT. The mark is registered in numerous countries around the world. The earliest ones being registered in the early 1980s.

Sale of vodka under the mark ABSOLUT was commenced in the United States of America in 1979, and in Sweden and other parts of Europe around 1980-1981. The mark has been used and advertised significantly since then, primarily for vodka, but also for other goods and services.

In 2001, ABSOLUT was ranked as the 93^rd most valuable trademark asset in the world by Interbrand and the ranking was published in the magazine “Business Week”. The mark has also been ranked as No. 1 on “Forbes” Magazines’ list of Top Luxury Brands in 2002. In 2003, ABSOLUT was referred to as the best selling trademark for premium spirits in all categories on a worldwide basis in the trade magazine “Impact”.

The Complainant’s website “www.absolut.com” has been awarded several prizes. The Complainant is also the owner of numerous other domain names containing the mark.

The Respondent is running an escort service, offering services performed by what is claimed to be particularly “exclusive” ladies. The offer is made on the Respondent’s website “www.academy-girls.co.uk”, which also depicts the ladies in a sexual manner. The domain name in dispute has led the Internet user to this site.

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that their mark is very well known all over the world, and that it, in fact, is one of the world’s most famous trademarks. There is a significant amount of goodwill connected to the mark, and it is very valuable.

The domain name in dispute is confusingly similar to Complainant’s mark. The addition of a descriptive suffix is not sufficient to give the domain name a different character than the mark, and prevent the overall impression that the domain name has a connection with the Complainant.

The Respondent does not have legitimate rights or interests in the domain name. The Respondent is not known by the name and there is no agreement between the Complainant and the Respondent, such as a license or authorization of any kind, granting the Respondent a right to use the Complainant’s mark. The Respondent is not making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain. The Respondent is using the domain name to attract Internet users to his sexual services website. By doing so, the Respondent is misdirecting Internet users to a pornographic website, in a way that tarnishes the Complainant’s mark.

The Respondent has registered and is using the domain name in bad faith. The trademark is very well known and reputed, and the Respondent must have been familiar with the mark. The considerable value and goodwill of the mark cannot have been unknown to the Respondent. The Respondent is using the domain name containing the Complainant’s trademark to attract Internet user to his pornographic website for commercial gain by creating a likelihood of confusion with the Complainant’s well-known mark. Combining well known trademarks with pornographic or other words as a domain name has become a popular way of generating traffic to these kinds of websites. Use of the Complainant’s well known mark in connection with sexual services severely tarnishes the mark, and this has in itself been considered evidence of bad faith in many decisions under the Policy.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A Identical or Confusingly Similar

The domain name in dispute consists of the trademark of the Complainant; ABSOLUT, with the addition of the character “-” and the word “escort”.

The trademark is registered in numerous countries by the Complainant. The mark consists of a Swedish word, and is written in a different manner than the English word “absolute” which has an “e” at the end. The mark has been used very extensively in most parts of the world.

The Complainant’s mark must be considered a well-known trademark. This follows from the evidence submitted by the Complainant, and has also been stated in several previous panel decisions under the Policy. Reference is made to V&S Vin & Sprit v. Canal Prod Ltd, WIPO Case No. D2002-0437, V&S Vin & Sprit v. Oliver Garcia, WIPO Case No. D2002-1081 and V&S Vin & Sprit AB v. Giovanni Pastor, WIPO Case No. D2002-0926.

The Panel finds that the addition of a generic word to the well-known mark does not alter the fact that the domain name is confusingly similar to the mark. Previous cases under the UDRP have shown that simply adding a common or generic term, such the word “escort”, to a famous mark is not sufficient to give the domain name an individual meaning and prevent the overall impression that the domain name has some sort of connection with the Complainant, see PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696; PepsiCo, Inc. v. Diabetes Home Care, Inc. and DHC Services, WIPO Case No. D2001-0174; Parfums Christian Dior v. 1 Netpower, Inc., WIPO Case No. D2000-0022; and L.L. Bean, Inc. v. ShopStarNetwork; National Arbitration Forum Case No. FA 95404, . The addition of the ordinary character “-” in the same way does not alter the domain name’s overall impression of being affiliated with the Complainant.

The domain name is thus confusingly similar to Complainant’s mark, in accordance with paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Respondent has not filed any Response arguing that he has rights or legitimate interests in the domain name.

The Respondent has, according to the Complainant, not been granted a license or right to use the mark in any manner by the Complainant and is not commonly known by the mark cf. the Policy, paragraph 4(c)(ii).

The Panel has visited the “www.absolut-escort.com” website, in order to investigate whether evidence could be found as to the Respondent’s rights or legitimacy of interest in the contested domain name. At present, the website no longer appears in the same form as it is presented in the Complaint, Annex 11. The website now displays an error message, stating that the page cannot be displayed. The Complainant has submitted that at the time of the Complaint, the Internet user entering the domain name was directed to a website with the same content as the website “www.academy-girls.co.uk”. The Panel has visited this site, which offers services from female escorts depicted in a sexual manner on the site.

The websites give no information regarding the Respondent’s possible rights or legitimate interests in the domain name.

Based on the evidence presented by the Complainant, the Panel does not doubt that the Respondent has not made a legitimate non-commercial or fair use of the domain name, without intent for commercial gain.

By registering and using a domain name which is confusingly similar to the Complainant’s famous trademark, the Respondent is using this similarity to attract users to his own website. This website has, according to Annex 11 to the Complaint, had content of a sexual nature. The Panel does not doubt that the Respondent is using the considerable goodwill of the Complainant’s mark to attract Internet users to his own site. This is done by registering and using a domain name confusingly similar to the Complainant’s mark. The use of the mark in the domain name is not done for any other apparent reason than creating a likelihood of confusion with the Complainant’s well-known mark, and hence to misleadingly divert consumers, cf. the Policy, paragraph 4(c)(iii).

The Respondent’s use of the well-known mark along with a word with a sexual connotation in a domain name leading to a website of a sexual nature may also lead to tarnishing the mark.

As mentioned, the Panel has found nothing on or outside the website connected to the domain name, or in the Annexes to the Complaint, as being evidence of the Respondent’s rights or legitimate interests in the domain name. Neither has the Respondent submitted a Response stating otherwise.

Hence, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name, and the prerequisites in the Policy, paragraph 4(a)(ii) are therefore fulfilled.

C. Registered and Used in Bad Faith

The last prerequisite for the Complainant to fulfill is that the domain name has been registered and is being used in bad faith, in accordance with the Policy, paragraph 4(a)(iii).

The domain name was registered by the Respondent on February 22, 2005. The Panel finds it highly unlikely that the Respondent was not familiar with the well known mark of the Complainant at the time of registration. The Complainant’s mark was first registered in Cyprus, the registered domicile of the Respondent, in 1994.

According to the Policy, paragraph 4(b)(iv), it is to be regarded as evidence of bad faith if the Respondent by using the domain name for commercial gain, intentionally attempts to attract Internet users to his website, by creating a likelihood of confusion with the Complainant’s mark.

In this case, it is clear that the Respondent is using the domain name in such a manner. The Respondent registered a domain name that is confusingly similar to the famous mark of the Complainant.

The domain name was, at the time of the Complaint, used for attracting Internet traffic to the Respondent’s website, and then diverting it to the Respondentґs website offering escort services. The Panel finds that this is done by intentionally confusing the users as to the source, sponsorship, affiliation or endorsement of the website, as most users will be familiar with the ABSOLUT mark and the goods sold under this mark. The Respondent is generating hits on his website by exploiting the Complainant’s goodwill as a widely known provider of goods. The Respondent is capitalizing on this confusion by generating more users on his website. The practice of attracting Internet users by creating a likelihood of confusion has been considered evidence of bad faith in previous panel decisions under the Policy, see for example America Online, Inc. v. AOL International, WIPO Case No. D2000-0654; Focus Do It All Group and others v. Athanasios Sermbizis, WIPO Case No. D2000-0923; Kosmea Pty Ltd v. Carmel Krpan, WIPO Case No. D2000-0948; and, Edmunds.com, Inc. v. Ult Search, Inc., WIPO Case No. D2001-1319.

The fact that most Internet users will understand when first entering the website that the website of the Respondent is in fact not connected to the Complainant, does not alter this conclusion. Reference is made to V&S Vin&Sprit AB v. Mattias Nordin, WIPO Case No. DNU2002-0001, where the Panel states; “ From this point of view it is of no relevance that any potential customer visiting the website “absolut.nu” would very soon realise that the site did not deal with the activities of Complainant; Respondent has at that stage already obtained users’ interest for the website and possibly for Respondent’s own activities.”

The fact that the Complainant’s well known trademark is used for displaying content of a sexual nature, and thus may lead to tarnishing the mark, is also evidence of bad faith. Reference is made to Deutsche Bank Aktiengesellschaft v. New York TV Tickets Inc., WIPO Case No. D2001-1314 and Benetton Group SpA v. Domain for Sale, WIPO Case No. D2001-1498.

The Respondent must have been well aware of the Complainant’s famous mark when registering the domain name, and is using the domain name in bad faith.

Hence, the Panel finds that the domain name is registered and used in bad faith by the Respondent, and the condition in the Policy, paragraph 4(a)(iii) is fulfilled.

 

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, <absolut-escort.com> be transferred to the Complainant.

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Peter G. Nitter
Sole Panelist

Dated: July 18, 2006