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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Allgemeiner Deutscher Automobil-Club v. Resie Neuhaus

Case No. D2007-0920

 

1. The Parties

The Complainant is Allgemeiner Deutscher Automobil-Club, e.V.(ADAC), of Munich, Germany, represented by Klinger & Kollegen, Germany.

The Respondent is Resie Neuhaus, Australian Diving Association Center, of Bucasia, Australia.

2. The Domain Name and Registrar

The disputed domain name <adac.mobi> is registered with Key-Systems GmbH dba domaindiscount24.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 21, 2007 identifying “Andrea Denstorf” of Costa den Blanes, Spain as Respondent. On June 22, 2007, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On June 26, 2007, Key-Systems transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant. On July 10, 2007 an Amendment to the Complaint was filed with the Center identifying the Registrar of the domain name inn issue as Key-Systems GmbH. On July 11, 2007, the Center transmitted to Key-Systems a second request for registrar verification in connection with the domain name at issue. On July 12, 2007, a Second Amendment to the Complaint was filed with the Center identifying the Respondent as Resie Neuhaus in place of Andreas Denstorf. On July 19, 2007, Key-Systems GmbH transmitted to the Center its verification response again confirming that the Respondent is listed as the Registrant and providing the contact details. The Center verified that the Complaint together with the two amendments to 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 July 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 8, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 10, 2007.

The Center appointed David Perkins as the sole panelist in this matter on August 17, 2007. 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.

On August 29, 2007, Mr. Denstorf, the Administrative and Technical Contact for the domain name and the Respondent in the original Complaint, emailed the Center requesting (presumably on behalf of the Respondent) an extension of time for the Response and demanding that the domain name in issue be maintained for the Australian Diving Association Centre and its investors. In that email Mr. Denstorf stated that the Australian Diving Association Center “… is assigned to the project of investors from the United Arab Emirates / Dubai to build the world biggest undersea hotel.” The communication from Mr. Denstorf goes on to state:

“During all adac.mobi email addresses are off-line the communication to the Arab investors is very difficult. So they aren’t able to answer technical questions about mobi domain registrations.”

The communication continues:

“In a first step all international experts and further project leaders from the Australian Diving Association Centre, American Diving Association Centre and the Asian Diving Association Centre got connected by adac.mobi email accounts to share documents and videos in real-time mode. In a second step the adac.mobi will be used for the mobile marketing.”

Finally, Mr. Denstorf says:

“For example adac.com, adac.net, adac.org and many other domains aren’t offline. Some of them are to buy and all of them are not blockaded. Also the Germany ADAC is already using the adac.de domain. So damages will be listed and claimed as soon as possible.”

Mr. Denstorf has been aware of the Complaint for some 9 weeks since it was sent to him contemporaneously with the Centre on June 26, 2007, and the Respondent’s time for response expired 3 weeks prior to Mr. Denstorf’s request of August 29, 2007. No compelling reason for the failure to respond within the time set down by the Rules has been given. Accordingly, the Request is rejected by the Panellist. In any event, as noted in Section 6 below, nothing in Mr. Denstorf’s communication would have change the Panel’s Decision in this administrative proceeding.

Both Mr. Denstorf and the Respondent had ample time to respond to the Complaint by August 8, 2007. Nevertheless, had good reason been shown by the Respondent before that date for granting an extension of time for Response, then providing such additional time would not have unduly delayed this administrative proceeding the request would have been granted. However, at this stage – some 3 weeks later and over 2 months since Mr. Denstorf was first provided with the Complaint – there is no justification for the request which (as stated) is refused.

Also on August 29, 2007, Mr. Denstorf emailed the Panellist directly in the following terms:

“Please find attachments we received on August 29, 2007 for the adac searching in the databases of Deutsches Patent und Markenamt and WIPO on the official http://www.dpma.de website”

The attachments comprise two undated pages from the German Patent and Trademark Office relating to the trademark ADAC, which do not make reference (for some reason) to the Complainant’s 87 ADAC trademarks.

On September 11, 2007, (after this Decision was made by the Panellist) the Complainant’s counsel wrote to both the Center and the Panel by email responding to the first email from Mr. Denstorf of August 29, 2007. This email states that the original Complaint dated June 21, 2007, was mailed to Mr. Denstorf at the address given for him in the WHOIS database for the domain name in issue. However, that letter was returned marked that Mr. Denstorf does not reside at that address.

Finally, the Complainant’s counsel observe that they have been unable to locate on the Internet any of the Australian Diving Association Centre, the American Diving Associate Centre or the Asian Diving Association Centre and, accordingly, conclude that none of these Associations referred to in Mr. Denstorf’s email in fact exist.

For the reasons stated above, in making this Administrative Decision the Panel has not taken into account either of Mr. Denstorf’s two emails of August 29, 2007 nor the September 11, 2007 email from the Complainant’s counsel.

4. Factual Background

4.A. The Complainant

4.A.1 The Complainant is Allgenmeiner Deutsche Automobil-Club e.V. described as a membership corporation with place of incorporation and principle place of business in Munich, Germany. The Complaint gives no further details, for example, as to the date of incorporation of the Complainant or its activities. However, from the Panel’s own research the Complainant appears to be a Motorists Association, comparable to the Automobile Association (AA) and the Royal Automobile Club (RAC) in the United Kingdom.

4.A.2 The Complainant’s ADAC trademark

4.A.2.1 The Complainant relies upon the German trademark DE39826729 ADAC filed and granted in 1998 in Classes 3-9: 11 & 12: 14: 16 – 18: 20 – 22: 24 & 25: 27 & 28: 35 – 39 and 41 & 42.

4.A.2.2 The Complainant further relies on ownership of an additional 87 German registered trademarks all of which incorporate ADAC. Of them 7 are for the word mark ADAC simpliciter, 65 are prefixed by ADAC and 15 have ADAC as a component of the mark. Of those 87 trademarks, 38 are listed as registered in the name of the Complainant. The other 49 registrations are, variously, in the names of ADAC-Schutzbrief Versicherungs A.G. (14): ADAC Verlag GmbH (16): ADAC-Rechtsschutz Vericherungs A.G. (3): ADAC Nordrheim e.V. (8): Service 24 Gesellschaft zur Vermittlung technischer Dienstleistungen mbH & Co. KG (x2): Derpart Reisevertrieb GmbH (x1): Kart-Verein Oppenrod e.V. in ADAC (x1): ADAC Niedersachsen / Sachsen-Anhalt e.V. (x1): Allgemeiner Deutscher Automobil Club (ADAC) Gau Mittelrhein e.V. (x1): ADAC Fahrsicherheit GmbH (x1) and Interessengemeinschaft der ADAC-Strassendienstbetriebe e.V. (x1). It would appear from the nomenclature of these proprietors that they are at least affiliated to the Complainant.

4.B. The Respondent

In the absence of a Response, nothing is known of the Respondent except that he is the registrant of the domain name in issue and what is stated in Mr. Denstorf’s email to the Center dated August 29, 2007 (referred to in paragraph 3 above).

 

5. Parties’ Contentions

5.A The Complainant

5.A.1 The Complainant contends that the domain name in issue is, but for the “.mobi” suffix, identical to its prior registered German trademark for ADAC.

5.A.2 As to rights to and legitimate interests in the domain name in issue, the Complainant exhibits a list of sponsored links at a website to which the domain name resolves. These comprise: (1) Stefan Sport Center, Munich; (2) Routeplanner online; (3) Sixt-Reisen; (4) Route, a website offering a European route planner; and (5) to the Complainant’s own membership website at <adac.de>.

5.A.3 The Complainant contends that this use by the Respondent of the domain name in issue is not a legitimate noncommercial or fair use without intent for commercial gain misleadingly to divert customers or to tarnish the ADAC trademark. Consequently, the Respondent has no rights or legitimate interests in the domain name in issue.

5.A.4 As to registration and used in bad faith the Complainant relies on the circumstances set out in paragraph 4(b)(i), (ii) and (iii) of the Policy. As to para. 4(b)(i), the Complainant says that the fact that the website to which the domain name resolves offers a link to the Complainant’s own website indicates that the domain name was registered or acquired primarily for the purpose of selling, renting or otherwise transferring it. As to para. 4(b)(iv), the Complainant points to the sponsored link to its own website which is not in fact sponsored by the Complainant and therefore gives rise to a likelihood of confusion with its ADAC trademark.

5.B. The Respondent

As stated, no Response has been filed by the Respondent other than Mr. Denstorf’s two emails of August 29, 2007 (referred to in paragraph 3 above).

 

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:

- that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- that the Respondent has no rights or legitimate interests in respect of the domain name; and

- that the domain name has been registered and is being used in bad faith.

6.2 The Policy paragraph 4c sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent’s rights or legitimate interest in the domain name in issue.

6.3 The Policy paragraph 4b sets out circumstances which, again in particular but without limitation, if found the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.

6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognises that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.

Identical or Confusingly Similar

6.5. The domain name in issue is identical to the Complainant’s German trademark DE39826729 ADAC registered in 1998, almost 9 years before the domain was registered in February 2007. Accordingly, the Complaint succeeds in establishing the first requirement of the Policy (para. 4(a)(i)).

Rights or Legitimate Interests

6.6 In the absence of a Response, there is no evidence that any of the circumstances set out in paragraph 4(c) of the Policy could apply in this case. Specifically, as regards paragraph 4(c)(iii), the use apparently being made of the domain name by the Respondent to link to other websites cannot be said to qualify as a legitimate noncommercial or fair use. Accordingly, the Complaint also satisfies the second requirement of the Policy.

6.7 There is nothing in either of Mr. Denstorf’s two said emails of August 29, 2007 which would alter that position.

Registered and Used in Bad Faith

6.8 The fact that the Complaint had 8 German trademark registrations for the word mark ADAC, and a further 80 German trademark registrations including the word mark ADAC prior to creation of the domain name in February 2007 is a strong indicator of bad faith registration. The fact that the Registrant’s contact address is listed as Australia Diving Association Center, the acronym for which is ADAC, cannot of itself legitimise the Registrant’s apparent failure to respect third party rights in ADAC. Either the Registrant did not enquire into third party rights before applying to register the domain name in issue or was indifferent to such third party rights as the registration might violate. In either case, the Respondent cannot assert bona fide registration. In this respect, Mr. Denstorf’s second email of August 29, 2007, appears to indicate that a search was made (at some date in 2007) with the German Patent and Trademark Office but, in the light of the Complainant’s extensive registered trademark coverage for ADAC, this is inconclusive and not persuasive.

6.9 As to use of the domain name in bad faith, the links which the domain name claims to sponsor have nothing whatever to do with diving activities, which would appear to be the activities associated with the Respondent as his postal address would indicate. Instead, they all link to transportation in some form as indicated in paragraph 5.A.2 above, including to the Complainant’s own membership website. The Panel finds in the circumstances that this is use falling within the circumstances of paragraph 4(b)(iv) of the Policy.

6.10 Nor do those links appear to relate to the activity of the Respondent outlined in Mr. Denstorf’s first email dated August 29, 2007.

6.11 Accordingly, the Panel finds that the Complaint meets the twin requirements of paragraph 4(a)(iii) of the Policy.

6.12 The Panel does not, however, agree that the Complaint succeeds under paragraph 4(b)(i) of the Policy, there being no evidence of any offer being made by the Respondent to sell the domain name to the Complainant or to any other party. However, as stated above, the Panel finds that the Complainant’s case under paragraph 4(b)(iv) of the Policy is made.

Comment

6.13 Although the Panel has decided in the Complainant’s favour in this administrative proceeding, the Complaint would have been better framed if it had included the usual information provided by Complainants. For example, the date when the Complainant began its activities under the trademark asserted, the nature of those activities, what information the Complainant has been able to ascertain as to the activities of the Respondent, whether there has been any communication with the Respondent and matters of that nature. Where a Complainant chooses to submit a Complaint with the barest of the requirements specified in the Rules, he does so at the risk of being foreclosed from amplifying his case at a later date.

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 <adac.mobi> be transferred to the Complainant.

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David Perkins
Sole Panelist

Date: August 29, 2007