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WIPO Arbitration and Mediation Center

EXPERT DECISION

Raiffeisen Schweiz Genossenschaft v. Wildvest LLC

Case No. DCH2008-0004

1. The Parties

The Claimant is Raiffeisen Schweiz Genossenschaft, St.Gallen, Switzerland, represented by Bratschi Wiederkehr & Buob, Switzerland.

The Respondent is Wildvest LLC, Charlestown, Nevis, Saint Kitts and Nevis.

2. Domain Name and Registrar

The disputed Domain Name <www-raiffeisen.ch> (the “Domain Name”) is registered with SWITCH (the “Registrar”).

3. Procedural History

The Request was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 18, 2008, by e-mail and on April 22, 2008, in hardcopy. On April 23, 2008, the Center transmitted by email to Registrar a request for verification in connection with the domain name at issue. On April 23, 2008, Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the holder of the domain name and providing the relevant contact details. The Center verified that the Request satisfied the formal requirements of the Rules of procedure for dispute resolution proceedings for .ch and .li domain names (the Rules of Procedure), adopted by Registrar, the .ch and .li registry, on March 1, 2004.

In accordance with the Rules of Procedure, paragraph 14, the Center formally notified the Respondent of the Request, and the Dispute resolution proceedings commenced on April 30, 2008. In accordance with the Rules of Procedure, paragraph 15(a), the due date for Response was May 20, 2008. No Response was submitted by the Respondent.

On May 21, 2008, the Center notified the Claimant accordingly, who made an application for the continuation of the Dispute resolution proceedings in accordance with specified in paragraph 19 of the Rules of Procedure and paid the required fees.

On June 3, 2008, the Center appointed Dr. Bernhard F. Meyer as Expert in this case. The Expert finds that it was properly appointed. In accordance with Rules of Procedure, paragraph 4, the above Expert has declared his independence of the parties.

4. Factual Background

The Claimant is Raiffeisen Schweiz Genossenschaft who is carrying out banking activities in Switzerland.

The Claimant is the owner of the trademark RAIFFEISEN in Switzerland (Trademark No. 543754 of October 17, 2005).

The Claimant also owns the domain name <raiffeisen.ch>.

The Respondent is a legal entity of St. Kitts and Nevis.

The Domain Name was registered by the Respondent on January 23, 2008.

5. Parties’ Contentions

A. Claimant

The Claimant objects to the use of the Domain Name by the Respondent basing its Request on the following grounds:

(i) The Claimant has the following rights in a distinctive sign under Swiss and Liechtenstein law:

- Firm name, protected under Article 956 of the Swiss Code of Obligations (“CO”)

- Trademark, protected under Article 13 of the Swiss Trade Mark Act (“TMA”)

- Furthermore the Claimant enjoys protection under Article 2 and Article 3(d) of the Swiss Unfair Competition Act (“UCA”).

(ii) The registration and/or use of the Domain Name at issue infringes Claimant’s right in a distinctive sign under the laws of Switzerland or Liechtenstein.

By using a confusingly similar domain name to Claimant’s company name the Respondent is further infringing on Claimant’s rights in a distinctive sign under the laws of Switzerland.

The Claimant requests the Panel to order a transfer of the Domain Name from the Respondent to the Claimant.

B. Respondent

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

6. Discussion and Findings

According to the Rules of Procedure, paragraph 24 (c), “the Expert shall grant the request if the registration or use of the domain name constitutes a clear infringement of a right in a distinctive sign which the Claimant owns under the laws of Switzerland”.

The Rules of Procedure, paragraph 24 (d) specify that “a clear infringement of an intellectual property right exists when

(i) both the existence and the infringement of the claimed right in a distinctive sign clearly result from the wording of the law or from an acknowledged interpretation of the law and from the presented facts and are proven by the evidence submitted; and

(ii) the Respondent has not conclusively pleaded and proven any relevant grounds for defense; and

(iii) the infringement of the right justifies the transfer or deletion of the domain name, depending on the remedy requested in the request”.

A. The Claimant has a right in a distinctive sign

The Claimant proved ownership of the trademark RAIFFEISEN (Exhibit No. 3 of the Request).

B. The registration or use of the Domain Name at issue constitutes a clear infringement of the Claimant’s right

A registered trademark allows the holder to invoke protection under the Swiss Trademark Act (“TMA”). In particular, the owner of a trademark is entitled to enjoin a third party from using the protected sign for the same goods and services which it is registered for (art. 13 TMA).

Furthermore, Claimant’s trademark may be considered as famous in Switzerland and surrounding countries. Its reputation and publicity literally invites its exploitation. Any service offered under the trademark RAIFFEISEN will certainly be seen as a new activity of the Claimant even if such service is not in the banking sector. Therefore, the trademark RAIFFEISEN enjoys a wider protection according to art. 15 TMA.

According to art. 13 para. 2 TMA in connection with art. 3 para. 1 lit. c TMA, the Claimant is entitled to enjoin the Respondent to use a sign similar to RAIFFEISEN in connection with goods and services identical or similar to Claimant’s. The Domain Name at dispute combines the prefix “www-” and the name RAIFFEISEN. The name RAIFFEISEN is the most distinctive part of the Domain Name and of Claimant’s trademark. The addition of the prefix “www-” does not render the disputed Domain Name significantly different from Complainant’s RAIFFEISEN trademark. When the disputed Domain Name is typed into the search line of the Internet browser, it leads to a bank-like webpage filled mostly with links to third parties. Thus, the Internet user is mislead.

The Panel notes that under paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy (“UDRP”) adopted by ICANN on August 26, 1999, the conduct of typosquatting is considered as evidence of bad faith. Typosquatting as referred to in several WIPO-decisions (see e.g., Adidas-Salomon AG v. Legueret Dominique, WIPO Case No. D2002-0107; Travelprice Com v. Pissin Chicken Inc., WIPO Case No. D2002-0129; Nike, Inc. v. Alex Nike, WIPO Case No. D2001-1115; Playboy Enterprises International Inc. v. SAND WebNames - For Sale, WIPO Case No. D2001-0094; Novus Credit Services Inc. v. Personal, WIPO Case No. D2000-1158; World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, WIPO Case No. D2000-0256; InfoSpace.com, Inc. v. Registrar Administrator Lew Blanck, WIPO Case No. D2000-0069) must be seen in Respondent’s expectation that Internet users who seek to visit Claimant’s domain name will type erroneously a hyphen instead of a period between “www” and “raiffeisen.ch” in Claimant’s URL and consequently attract those Internet user to its own website for commercial gain. This behaviour could not serve any possible legitimate interests and could only aim at exploiting the reputation of a trademark.

The Respondent offers no evidence that might prove any right in the Domain Name.

Therefore, the Respondent clearly infringes the Claimant’s trademark rights.

7. Expert Decision

For the above reasons, in accordance with paragraph 24 of the Rules of Procedure, the Expert orders that the domain name <www-raiffeisen.ch> be transferred to the Claimant.

Dr. Bernhard F. Meyer
Expert

Dated: June 17, 2008