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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Schomburg GmbH & Co. KG v. aquafin.com, c/o WHOIS Identity Shield

Case No. D2006-1136

 

1. The Parties

The Complainant is Schomburg GmbH & Co. KG, Detmold, Germany.

The Respondent is aquafin.com, c/o WHOIS Identity Shield / “Schomburg GmbH & Co. KG”, Vancouver, British Columbia, Canada.

 

2. The Domain Name and Registrar

The disputed domain name <aquafin.com> is registered with Nameview Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 5, 2006. The hardcopies were received by the Center on October 12, 2006.

On September 8, 2006, the Center transmitted by email to Nameview Inc. a request for registrar verification in connection with the domain name at issue.

On September 11, 2006, Nameview Inc. transmitted by email to the Center its verification response. Nameview Inc. did not confirm that the Respondent is listed as the registrant of the domain name. Before filing of the Complaint the Whois database indicated that “AQUAFIN.COM Domain Deluxe” was the entity that appeared as the domain name holder.

At the time of filing of the Complaint, the Whois information for the disputed domain name was changed to reflect the identity identified as “AQUAFIN.COM c/o Whois Identity Shield”.

At some point after the filing of the Complaint, the Whois information for the disputed domain name was changed to reflect the identity and contact details of the Complainant, “Schomburg Gmbh & Co.KG”. When contacted by the Center the Complainant confirmed that they did not have any actual control over the disputed Domain Name.

In the circumstances the Panel finds that the appropriate Respondent is the entity listed as the registrant in the Whois at the time of filing of the Complaint, i.e. “AQUAFIN.COM c/o Whois Identity Shield” and that entity was properly served with the Complaint and procedural notices.

On September 20, 2006, as the Center had not received hard copies, the Center requested confirmation that the hard copies of the Complaint had been sent. The Complainant stated that the hard copies had not been filed.

On October 12, 2006, 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 October 12, 2006.

In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2006. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on November 2, 2006.

The Center appointed James Bridgeman as the Sole Panelist in this matter on November 9, 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

There is very little information about the Complainant supplied in the very brief Complaint.

The Complainant has however provided a copy of a certificate of its International Trademark registration No 564220 for the trademark AQUAFIN dated January 25, 1991, based on the German registration No. 1155199 dated January 13, 1989, for chemical products for use in the construction industry and chemical detergents for construction.

There is very little information available about the Respondent either. The Respondent did not file a Response or contact the Center in the course of these proceedings. The information on the Whois database changed on three occasions without explanation and the Respondent’s use of an identity shield has prevented the Complainant from securing any reliable information.

 

5. Parties’ Contentions

A. Complainant

The Complainant requests the domain name <aquafin.com> be transferred to the Complainant.

The Complainant submits that the domain name is identical to the trademark AQUAFIN in which the Complainant has rights. The Complainant submits that it has long established use of the AQUAFIN name in relation to the production and distribution of building and construction products since 1936.

The Complainant claims to be the owner of three registrations in Germany for the AQUAFIN mark and numerous registrations for the AQUAFIN mark. The Complainant claims to have submitted a list of its registrations for the AQUAFIN trademark as an annex to the Complaint. (This list was not in fact with the Complaint).

The Complainant further submits that the Respondent has no rights or legitimate interests in respect of the domain name in dispute. The Respondent has no trademark rights of the name AQUAFIN.

The Complainant describes the Respondent as a “so-called domain grabber” and points out that the Respondent has been the respondent in numerous UDRP proceedings. In this regard the Complainant cites the following UDRP decisions: Z-Tel Technologies, Inc., v. Domain Deluxe, WIPO Case No. D2001-1427; Sociйtй BIC v. Domain Deluxe, WIPO Case No. D2005-0369; Humana Inc. v. Domain Deluxe, WIPO Case No. D2005-0231; Groupe Lactalis and BSA. v.Domain Deluxe, WIPO Case No. D2003-0314; Pancil LLC v. Domain Deluxe, WIPO Case No. D2003-1035.

The Complainant submits that the Respondent has registered and is using the domain name in bad faith. The Respondent must have been aware of the Complainant’s reputation and its rights in its registered trademarks when the Respondent registered the domain name in dispute.

The Respondent has damaged the Complainant by establishing a website at the “www.aquafin.com” address with the following central statement posted on the site: “For resources and information on Construction and Building products.”

The Complainant claims that the said statement on the Respondent’s website is deliberately damaging to the Complainant as the Respondent was at all times aware that the Complainant is in the business of producing and distributing construction products and has been engaged in that business since 1936.

In a telephone conversation, the Respondent has offered to transfer the domain name in dispute to the Complainant in return for a cash payment but the Respondent did not supply a written confirmation of the offer when requested.

The Respondent in using the domain name intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy places on the Complainant the onus of proving that:

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the said domain name; and

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

A. Identical or Confusingly Similar

The Complainant has established that it has rights in the trademark AQUAFIN for certain building and construction products. The evidence in the Complaint is that the Complainant has been carrying on business using the AQUAFIN name since 1936.

While the Complainant states in the Complaint that it has supplied a list of its trademark registrations as an annex to the Complaint, it has failed to do so. It did however supply a copy of the abovementioned certificate for its International registration of the AQUAFIN trademark.

The domain name is identical to the Complainant’s trademark.

B. Rights or Legitimate Interests

The Complainant has established a prima facie case that the Respondent has no rights or legitimate interest in the <aquafin.com> domain name. In such circumstances the onus shifts to the Respondent to establish that it has rights in the domain name in dispute.

The Complainant is the owner of the distinctive AQUAFIN mark. The Complainant has convincingly argued that the Respondent was aware of the Complainant’s reputation when the domain name was registered.

The Respondent has been given the opportunity to establish that it has rights or legitimate interest in the domain name but has failed or refused so to do.

In the absence of any Response or other explanation from the Respondent, the Complainant has satisfied this Panel on the balance of probabilities that the Respondent has no rights or legitimate interest in the domain name.

C. Registered and Used in Bad Faith

The unchallenged evidence of the Complainant is that the Respondent knowingly chose to register the Complainant’s trademark as a domain name. The Respondent then established a website at the “www.aquafin.com” address and posted the following statement on the website: “For resources and information on Construction and Building products.”

In the circumstances, on the balance of probabilities, the Complainant has established that the Respondent is using the domain name <aquafin.com> to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondents website or location.

This Panel therefore concludes that the Complainant has established that the Respondent has registered and is using the domain name <aquafin.com> in bad faith.

 

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 <aquafin.com> be transferred to the Complainant.

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James Bridgeman
Sole Panelist

Dated: November 23, 2006