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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

CeWe Color AG & Co. OHG v. Shenbun Limited

Case No. D2008-0810

1. The Parties

The Complainant is CeWe Color AG & Co. OHG of Meerweg 30-32, 26133 Oldenburg, Germany, represented by Eisenfьhr, Speiser & Partner, Germany.

The Respondent is Shenbun Limited of PO Box 2340, General Post Office, Hong Kong, China, represented by John Berryhill, United States of America (“US”).

2. The Domain Name and Registrar

The disputed domain name, <cewe.net> (the “Domain Name”), is registered with Fabulous.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 22, 2008. On May 23, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 26, 2008, the Registrar 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 May 28, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response June 17, 2008. The Response was filed with the Center on June 17, 2008.

The Center appointed Tony Willoughby, Thomas Hoeren and David E. Sorkin as panelists in this matter on July 2, 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

While the evidence which the Complainant has put before the Panel is sparse in the extreme as to the nature and extent of the Complainant’s business, the Panel accepts for the purpose of this administrative proceeding that the Complainant is a substantial German-based provider of photo processing services.

The Complainant is the registered proprietor of a number of trade mark registrations of marks comprising or including the word “cewe”, the earliest being a German word mark registration for “cewe color” dated March 29, 1979 (registered on February 25, 1980 for inter alia photo albums and photographic film processing. The first “cewe” (solus) word mark registration is a German national registration was applied for on August 19, 2005 and registered on December 16 the same year.

The Domain Name was registered on January 17, 2003.

The Complainant has produced evidence to show that the Domain Name was first connected to a website in December 2003 and that on June 29, 2004 the website was a trafficz.com parking page featuring a wide variety of sponsored links, the predominant category being links to adult “girly” sites.

On November 15, 2007, the Domain Name connected to a Sedo parking site featuring (in the German language version) a mixture of links, some of them being links to the Complainant’s site or sites providing similar services and others being adult sites.

On May 21, 2008, the Domain Name was listed on the Sedo site as being for sale.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the word “cewe” is artificial and without any inherent meaning.

The Complainant points to its trade mark registrations and contends that the Domain Name is identical to its “cewe” word marks and confusingly similar to its “cewe color” word and device marks.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent has not licensed the Respondent to use its trade mark and the Complainant contends that there are no other reasons why the Respondent could be said to have rights or legitimate interests in respect of the Domain Name. The Complainant notes that in November 2007 the Domain Name was linked to a site featuring links to competitors of the Complainant.

The Complainant contends that the Domain Name was registered and is being used in bad faith. The Complainant recognizes that “bad faith requires that the Respondent knew about the Complainant’s marks” and contends that the fact that the Sedo site to which the Domain Name was linked in November 2007 featured a link to the Complainant’s site demonstrates the requisite knowledge. The Complainant asserts that the fact that the Domain Name was listed for sale on the Sedo site is evidence of bad faith as is the fact that the Domain Name has been connected to a site featuring links to sites of the Complainant’s competitors.

B. Respondent

The Respondent contends that the word “cewe” is a slang word in Bahasa Indonesia, an abbreviation of “cewek”, meaning a girl or young woman and produces evidence to support that contention.

The Respondent contends that any trade mark registrations of the Complainant post-registration of the Domain Name are to be ignored and therefore that the only trade marks of the Complainant to be considered are the “cewe color” marks. The Respondent contends that the Domain Name is not confusingly similar to the Complainant’s “cewe color” marks.

The Respondent contends that in using the Domain Name to link (directly or indirectly) to sites featuring pictures and films of attractive young girls is a perfectly legitimate usage of the Domain Name, given its meaning in the Bahasa Indonesia language. The Respondent produces evidence to show that the Respondent has registered a number of Bahasa Indonesia language words, many of them apt for use in relation to adult material.

The Respondent contends that the fact that Sedo “geo-targeted” the links displayed with the result that the German version featured links to the Complainant and/or its competitors was outside the Respondent’s knowledge. The Asian and US versions do not mention the Complainant and are, as the Respondent intended, directed to adult-orientated material.

The Respondent denies that the Domain Name was registered and is being used in bad faith. The Respondent states that it was unaware of the existence of the Complainant at the time of registration of the Domain Name and that from the outset its intention was to use the Domain Name as it has done, namely to connect to adult-orientated material.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that

(i) The Domain Name 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 Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.

B. Identical or Confusingly Similar

The Domain Name comprises the Complainant’s word mark “cewe” and the generic domain suffix (which may be ignored when ascertaining identity and confusing similarity under the Policy).

The Panel finds that the Domain Name is identical to a trade mark in which the Complainant has rights. The fact that the Complainant’s trade mark registrations of that word mark all post-date the registration of the Domain Name is of no consequence under this head of paragraph 4(a) of the Policy.

In fact, the Complainant is also the registered proprietor of trade mark registrations for the word mark “cewe color”, registrations which pre-date the registration of the Domain Name by several years. While the Respondent denies that in practice there is any real possibility of confusion between the Domain Name and the Complainant’s “cewe color” trade mark, it is now well-established that for the purposes of this head of the Policy the use to which a respondent puts a domain name may well not be a relevant consideration. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions deals with this issue as follows

“Consensus view: The content of a website (whether it is similar or different to the business of a trademark owner) is irrelevant in the finding of confusing similarity. This is because trademark holders often suffer from “initial interest confusion”, where a potential visitor does not immediately reach their site after typing in a confusingly similar domain name, and is then exposed to offensive or commercial content. The test for confusing similarity should be a comparison between the trademark and the domain name to determine the likelihood of confusion.”

The Panel takes the view that to Internet users at large, most of whom will be wholly unfamiliar with the Bahasa Indonesia language, “cewe” will appear, as the Complainant asserts, an artificial word without any inherent meaning and therefore, potentially at least, particularly distinctive. On that basis the Panel finds that the Domain Name is confusingly similar to the Complainant’s “cewe color” trade mark.