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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Systembolaget Aktiebolag v. Elarco/Pablo Pesetas

Case No. D2008-0675

1. The Parties

The Complainant is Systembolaget Aktiebolag, of Sweden, represented by Sandart & Partners Advokatbyrе KB, Sweden.

The Respondent is Elarco/Pablo Pesetas, of Spain.

2. The Domain Name and Registrar

The disputed domain name <systembolaget.biz> is registered with CSL Computer Service Langenbach GmbH dba Joker.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2008. On May 2, 2008, the Center transmitted by email to CSL Computer Service Langenbach GmbH dba Joker.com a request for registrar verification in connection with the domain name at issue. On May 2, 2008, CSL Computer Service Langenbach GmbH dba Joker.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2008.

The Center appointed Kristiina Harenko, Gunnar Karnell and Mario A. Sol Muntaсola as panelists in this matter on June 27, 2008. The Panel finds that it was properly constituted. Each member of 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

According to the extract from CTM Online trademark register, the Complainant is the proprietor of the Community trademark SYSTEMBOLAGET (register number 001522093, filing date February 15, 2000 and registration date April 9, 2003), which is registered inter alia for alcoholic beverages. In Sweden the Complainant has registered trademarks SYSTEM BOLAGET (filing date September 30, 2004), SYSTEMET (filing date October 3, 2003), and BOLAGET (filing date October 3, 2003).

The Respondent registered the domain name <systembolaget.biz> on June 6, 2007.

5. Parties’ Contentions

A. Complainant

The Complainant, Systembolaget Aktiebolag (“Systembolaget”), is a government monopoly in alcohol retailing in Sweden dating back to the mid-1800s. The monopoly is based on the principle that there should be no private profit motive in the sale of alcohol. Systembolaget’s mission is to sell alcoholic beverages and to be at the forefront of developing a healthy drinking culture. The aim is to minimize alcohol-related problems by selling alcohol in a responsible way, without profit motive.

The Complainant’s trade name (Systembolaget) was registered on July 24, 1968. Thus, Systembolaget has since then an exclusive right to the trade name Systembolaget in Sweden. Further, the Complainant is the proprietor of the community trade mark registration SYSTEMBOLAGET and a large number of other trade marks including the word “systembolaget” and parts of this word such as “bolaget” and “systemet”. Extracts from CTM-online and Swedish national trademark register were attached to the Complaint (annex 4 to the Complaint).

The Complainant contends that the mark SYSTEMBOLAGET has for long time constituted a well-known trade mark which has acquired a substantial goodwill. The Complainant refers especially to the following circumstances.

Systembolaget is a retail trade monopoly and thus has an exclusive right to sell alcoholic beverages in Sweden. Systembolaget has 411 stores and 580 agents all over Sweden. Approx. 100 million customer visits are made in all Systembolagets’s stores every year. The mark SYSTEMBOLAGET is exposed stores by way of signs, posters etc.

Each year Systembolaget spends 40-50 million SEK on information regarding its business and commission. All information is presented under the mark SYSTEMBOLAGET.

The Complainant has a very well attended website, under the domain name <systembolaget.se> with approximately. 10 million visits every year. The mark SYSTEMBOLAGET is also exposed on the website. On the website the Complainant inter alia provides visitors with information on its products and services.

Each month the trademark SYSTEMBOLAGET is mentioned approximately 600 times in the press and approximately 90 times in radio and television.

Due to the extensive use of the trade name and trade mark SYSTEMBOLAGET, over time as well as geographically in Sweden, it has become one of the most notoriously well-known trade marks in Sweden. A market survey done by Synovate AB in 2007 shows that 97 % of the respondents had knowledge of SYSTEMBOLAGET and that 73 % of the respondents had very good knowledge or fairly good knowledge of SYSTEMBOLAGET. The survey was carried out on October 25, 2007 – November, 2007 through interviews on the Internet. 1,015 interviews were carried out with a nationally representative selection in the age group 16 – 75 years. The survey shows that SYSTEMBOLAGET is an established and well known mark. The survey is attached to the Complaint. Since the trademark SYSTEMBOLAGET is well known in Sweden the scope of protection, according to Swedish trademark law is extended to fields outside of the business in which the Complainant is operating.

The Complainant contends that the domain name <systembolaget.biz> is confusingly similar to the trademark SYSTEMBOLAGET. In fact, the domain name <systembolaget.biz> is identical with the trademark SYSTEMBOLAGET since the suffix “.biz” only indicates the gTLD, in which the domain name is registered, and shall not be taken into consideration when applying the similarity test.

According to the Complainant, the Respondent has no rights or legitimate interests in respect of the domain name <systembolaget.biz>. As far as the Complainant knows, the Respondent does not have any registered trade mark or trade name containing the word “systembolaget” for the relevant business carried out on the web site. Nor has the Complainant given the Respondent permission to register the domain name <systembolaget.biz>. The Respondent has not after the registration used the domain name in such a way that it has created a legitimate interest in the domain name since, inter alia, nothing indicates that the Respondent is commonly known under the registered domain name. The business carried out on the web site is the offering to companies to advertise on the web site with links to the advertisers’ own web sites. Most of the adverts contain links to web sites where alcoholic beverages are marketed and sold. A screen dump of the Respondent’s web site was attached to the Complaint. The Complainant concludes that the Respondent’s use is thus a clear infringement of the Complainant’s exclusive rights to the trade mark and trade name SYSTEMBOLAGET.

A circumstance which further indicated that the Respondent does not have a right to or a legitimate interest related to the domain name <systembolaget.biz> is the fact that the domain name has been used commercially to mislead the public and that thereby the use has caused and still causes damage to the trade mark SYSTEMBOLAGET. The business carried out under <systembolaget.biz> is similar to the goods and services covered by the trade mark SYSTEMBOLAGET. A visitor is likely to be directed to <systembolaget.biz> by mistake when searching for the Complainant’s web site and the Respondent is thereby taking unfair advantage of the Complainant’s trade marks and trade names. Furthermore the Respondent’s web site provides a link to Systembolaget’s web site <systembolaget.se> and it is stated in Swedish that visitors shall read and reflect upon Systembolaget’s web site but buy from the Respondent’s (Elarco’s) advertisers. It is obvious that the activity on the website under the domain name <systembolaget.biz > is detrimental to the Complainant’s reputation and can cause great damage to the Complainant’s goodwill and credibility.

The Complainant has in letters addressed to the Respondent called Respondent’s attention to the fact that the use of the domain name <systembolaget.biz> constitutes an infringement of the Complainant’s trade name and trade marks and has requested the Respondent to transfer the domain name without compensation to the Complainant. However, the Complainant has not received any response and the business on the web site under domain name <systembolaget.biz> is still going on.

Considering that the Complainant is one of the best known trade marks in Sweden, the Complainant contends that it is inconceivable that the Respondent would not be aware of the trade mark SYSTEMBOLAGET at the time of the registration of the domain name <systembolaget.biz>. This is also evident since the text on the web site is entirely in Swedish and refers to the Complainant when encouraging the visitors to read and reflect upon the Complainant’s web site but to buy from the advertisers on the web site under domain name <systembolaget.biz>. Given the widespread knowledge of the trade mark SYSTEMBOLAGET, the business run by the Complainant and the business carried out on the web site under the domain name <systembolaget.biz> it is obvious that the purpose with the registration of the domain name has been to create association to the Complainant when using the domain name <systembolaget.biz> in order to confuse the visitor as regards the source of the Respondent’s web site. This is also clear from the statement on the Respondent’s website that “systembolaget.biz” is the meeting place for buyers and suppliers of beer, wine and spirits on the Internet. The Complainant concludes that it is obvious that the Respondent registered the domain name <systembolaget.biz> in order to mislead the public to visit the web site, when the information searched for in fact was the one presented by the Complainant. In this way the Respondent intentionally has attempted to attract, for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as the source of the Respondent’s web site. The use of <systembolaget.biz> is also a flagrant violation of Swedish trademark law.

The Complainant further contends that <systembolaget.biz> has also been registered in order to interfere with the Complainant’s business. The Respondent’s business on the web site under the domain name <systembolaget.biz> is similar to the business which the Complainant runs in its stores and on its web site and occurs under a domain name, which is confusingly similar to the Complainant’s trademarks and trade name. The providing of a link to the Complainant’s web site where people visiting the web site are encouraged to read and reflect upon the Complainant’s web site, but to buy from the advertisers on the Respondent’s web site clearly shows that the purpose has been to disrupt the Complainant’s business.

B. Respondent

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

6. Discussion and Findings

Pursuant to paragraph 4(a) of the Policy, Complainant must prove the following elements:

(i) that the domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

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

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

Under paragraph 15(a) of the Rules, this Panel must “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 Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules.

A. Identical or Confusingly Similar

The Complainant has evidenced by extracts from CTM (Community trade mark) Online trademark register and national Swedish trademark register that the Complainant is the owner of registered SYSTEMBOLAGET trademarks in Sweden and in the countries of the European Union.

The Complainant has based its Complaint also on the fact that the disputed domain name <systembolaget.biz> is confusingly similar to the Complainant’s trade name. Pursuant to paragraph 3(a)(i) the Policy is not applicable to disputes based on rights in business names unless the Complainant can establish common law or unregistered trademark rights in the name. The old Swedish national company Systembolaget is a very well-known trade name. The Complainant has attached to its Complaint a survey that clearly shows that SYSTEMBOLAGET is an established and well-known mark in Sweden.

The disputed domain name <systembolaget.biz> is identical to Complainant’s trademark SYSTEMBOLAGET. Applying the similarity test, the suffix “.biz”, which indicates the gTLD, in which the domain name is registered, is not to be taken into consideration.

The Complainant has proved the first element of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

In this respect the Complainant has, according to paragraph 4 (a)(ii) of the Policy, to prove that the Respondent has no rights or legitimate interests in the domain name at issue.

The Complainant has contended that the Complainant has not given the Respondent permission to register the domain name <systembolaget.biz>. The Respondent is not making a noncommercial use of the domain name. Neither is there use nor are there preparations showing the use of the domain name with a bona fide offering of goods or services. In fact the Respondent has used the domain name commercially to mislead the public and thereby caused damage to the trade mark SYSTEMBOLAGET.

To support its contentions in this respect, the Complainant has invoked a number of circumstances, supported by documentary evidence. Despite the opportunity given, the Respondent has not contested or commented on the contentions by the Complainant.

On the basis of these circumstances the Panel is satisfied that the evidence submitted by the Complainant sufficiently supports its contention that the Respondent has no rights or legitimate interests in the domain name at issue.

C. Registered and Used in Bad Faith

For the purposes of determining if the bad faith element is present, the Panel considered the circumstances of the registration and use of the domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of a domain name in bad faith is evidenced.

The trademark SYSTEMBOLAGET is one of the best known trademarks in Sweden. It is inconceivable that the Respondent would not be aware of SYSTEMBOLAGET at the time of registration. This is evident since the business of the Respondent falls into the same sector as the business of the Complainant and the text on the Respondent’s web site is entirely in Swedish and refers to the Complainant when encouraging the visitors to read and reflect upon the Complainant’s web site but to buy from the advertisers on the Respondent’s web site under the domain name <systembolaget.biz>. The trademark SYSTEMBOLAGET is such a well known mark in Sweden and so obviously connected with the Complainant and its products that its very use in an unconnected business, as in the present case, must be considered what has been called “opportunistic bad faith”.

Furthermore, the arguments by the Complainant as summarized here above under 5(A), supported by means of proof submitted by the Complainant, have convinced the Panel that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as the source of the Respondent’s website. The purpose of the Respondent has also been to disrupt the Complainant’s business.

Finally, the lack of a response to this Complaint infers that the Respondent in all likelihood could not demonstrate any good faith use of the domain name.

The Complainant has proved the third element of paragraph 4(a) of the Policy

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, <systembolaget.biz> be transferred to the Complainant.

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Kristiina Harenko
Presiding Panelist

Gunnar Karnell
Panelist

Mario A. Sol Muntaсola
Panelist

Dated: July 8, 2008