WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mobilkom Austria AG v. Herbert Zajic
Case No. D2001-0466
1. The Parties
The Complainant in this administrative proceeding is Mobilkom Austria AG, a corporation organized and existing under the laws of Austria, with its principal place of business located at Obere Donaustrasse 29, A-1020 Vienna, Austria.
The Respondent is Herbert Zajic, Zieglergasse 69, A-1070 Vienna, Austria.
2. The Domain Name and Registrar
The disputed domain name is <mobilkom-austria.com>.
The Registrar of the domain name is CORE Internet Council of Registrars with business address in 29, Route De Pré Bois, CH-1215, Geneva, Switzerland.
3. Procedural History
Issuance of Complaint
3.1 On March 30, 2001, Complainant submitted a Complaint to the World Intellectual Property Organization Arbitration and Mediation Center ("Center") pursuant to the Uniform Domain Name Dispute Resolution Policy ("UDRP") implemented by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999, and under the rules for the UDRP implemented by ICANN on the same date ("UDRP Rules"). The Complaint and Exhibits were received by the Center in hardcopy on April 12, 2001. The Center acknowledged receipt of the Complaint on April 3, 2001.
Confirmation of registration details
3.2 On April 4, 2001 a Request for Registrar Verification was transmitted to CORE Internet Council of Registrars. In an e-mail to the Center dated April 10, 2001, CORE Internet Council of Registrars confirmed that it is the Registrar for the domain name <mobilkom-austria.com>.
Notification of Respondent
3.3 Having verified that the Complaint satisfied the formal requirements of the UDRP and the UDRP Rules, the Center sent on April 11, 2001, a Notification of Complaint and Commencement of Administrative Proceeding to the Complainantís authorized representative by facsimile and e-mail; to the Respondent by post, facsimile and e-mail. The Center advised the Respondent that the Response was due no later than April 30, 2001.
Filing of response
3.4 No Response was filed by the Respondent within the time specified in the Notification of Complaint. A Notification of Respondent Default was sent by the WIPO Center to the Respondent, and copied to the Complainant, by e-mail on May 1, 2001. As of the date of this decision, no response had been filed by the Respondent.
Constitution of Administrative Panel
3.5 Having received no Response from the Respondent within the specified time in the Notification of Complaint, the WIPO Center proceeded to appoint a single-member Panel and invited Dr. Torsten Bettinger to serve as a Panelist in this Administrative Proceeding.
Having received the Panelistís Declaration of Impartiality and Independence, the Center issued a Notification of Appointment of Administrative Panel and set a decision date, with the Panelistís deadline for issuing a decision of May 29, 2001.
The Center transmitted the case file to the Panelist on May 15, 2001. The case file was received by the Panelist on May 16, 2001.
4. Factual Background
The Complaint asserted, and provided evidence in support of the following facts:
The Complainant is one of the largest Austrian provider of telecommunications and information services.
The Complainant has provided documentary evidence of the following trademark
mobilkom austria Ė Trademark Reg. No. 161 971 Intl. Class 9, 16, 35, 38, 41.
The Respondent is the registrant of the domain name <mobilkom-austria.com>.
The Respondent operates a website at <domain-www.com> on which the Respondent advertises for sale the domain name at issue and various other domain names incorporating famous marks such as <obimarkt.com>, <budweiserbier.com> <alcatel-austria.com>. A search of the Network Solutions, Inc. WHOIS database conducted by the Panel disclosed that the Respondent is the registrant of these domain names.
In order to avoid court proceedings, by e-mail of March 29, 2001, the Complainant offered the Respondent Euro 2,000 for the transfer of the domain name. The Respondent answered this offer by e-mail of the same day claiming Euro 3,000 discharge from costs for telecommunication services for two years for his mobile phones, installation of a high speed ADSL-Internet-account in his rooms for free and discharge from cost for Internet connection for two years. The Respondent pointed out that he would transfer the domain name <mobilkom-austria.com> to a Hungarian company if the complainant did not accept these conditions.
The website that is currently connected to the domain name <mobilkom-austria.com> shows the following text:
"MOBILE KOMMUNIKATION in AUSTRIA" - MOBILKOM-AUSTRIA
Wir sind eine Gemeinschaft des Friedens. Wir wollen über www.mobilkom-austria.com (nicht zu verwechseln mit dem kommerziell orientierten Handykonzern) eine Kommunikationszentrale aufbauen, die dem Frieden dient. Hier werden Sie Platz finden, Ihre Sorgen und Nöte mit Leidensgenossen zu teilen. Wir wollen allerdings hauptsächlich aktiv helfen. Wenn ein Gremium beurteilt, daß es jemanden irgendwo auf dieser Welt besonders schlecht geht, so soll entscheiden werden, wo und wie man helfen kann.
Geplant ist ein weltweit mobiler Kommunikationsaustausch (digitale Forumgespräche). Ab Herbst startet diese Organisation. Auf dieser Homepage werden Sie schon bald nähere Details erfahren.
Über email@example.com erreichen Sie uns schon jetzt. Humanitäre Menschen sind uns willkommen. Helft mit, unsere Welt friedlicher zu gestalten. Wir freuen uns, wenn Sie mit uns ein Stück Zukunft gestalten wollen. Wir sind ein Zentrum des Friedens und des Verständnisses.
Ich selbst habe sehr lange unter religiösen und politischen Verfolgungen gelitten. Ich habe meinen Peinigern verziehen! Auf eine bessere Zukunft, Ihr Dr. Lajos Pintar"
5. Partiesí Contentions
The Complainant asserts that: (1) The domain name <mobilkom-austria.com> is identical or confusingly similar to the trademark "mobilkom austria" in which the Complainant has exclusive rights; (2) the Respondent has no rights or legitimate interests with respect to the domain name; and that (3) the domain name was registered and is being used in bad faith.
The Complainant requests that the Administrative Panel issue a decision that the domain name <mobilkom-austria.com> be transferred to the Complainant.
The Respondent did not file a Response to the Complaint.
6. Discussion and Findings
Pursuant to paragraph 4(a), the Complainant must prove that each of the following three elements are present if it is to prevail:
(i) The Respondentís "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 with respect to the domain name;" and
(iii) The "domain name has been registered and is being used in bad faith."
a. Identical or confusingly similar (paragraph 4(a)(i))
The Complainant has registered the domain name <mobilkom-austria.com>. This domain name is identical to Complainantís trademark "mobilkom austria", except that the domain name adds the generic top-level-domain ".com".
The addition of the generic top-level-domain (gTLD) ".com" is without legal significance in determining similarity.
The design that is part of the trademark does not significantly affect the visual impression made by the mark as compared with the domain name. The Panel therefore concludes that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has prior exclusive rights.
b. Rights or legitimate interests (paragraph 4(a)(ii))
The Respondent has not provided evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the Domain Name. In the absence of evidence or even an assertion to the actual use of the domain name the mere fact that the domain name is currently connected to a website that shows a text authored by an organization "Mobile Kommunikation" is not sufficient to base a finding of a legitimate interest.
The Panel therefore concludes that Respondent has no rights or legitimate interests in the domain name <mobilkom-austria.com> and that the requirement of the UDRP Paragraph 4 (a) (ii) is satisfied.
c. Bad faith (paragraph 4 (a) (iii))
The fact that the Respondent has chosen not to submit a Response is particularly relevant to the issue of whether the Respondent has registered and is using the domain name in bad faith. Rule 14(b) of the Uniform Rules provides that, in the absence of exceptional circumstances, a Panel shall draw such inferences as it considers appropriate from the failure of a party to comply with a provision or requirement of the Uniform Rules. This Administrative Panel finds there is no exceptional circumstances for the failure of the Respondent to submit a Response. This Administrative Panel draws from this failure the following two inferences: (i) the Respondent does not deny the facts which the Complainant asserts, and (ii) the Respondent does not deny the conclusions which the Complainant asserts can be drawn from these facts.
Nevertheless, this Administrative Panel still has the responsibility of determining which of the Complainantís assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see. WIPO Case No. D2000-0438, Inter-IKEA Systems B.V. v. Hoon Huh).
The Complainant provided evidence of facts, which are clearly relevant to the issue of whether the Respondent registered and is using the domain name in bad faith.
The Complainantís trademark is widely known. In the absence of evidence or even an assertion by the Respondent to the contrary knowledge of the Complainantís rights can be imputed to the Respondent at the time of its registration of the domain name.
The Respondentís e-mail of March 29, 2001, was an obvious offer to sell the Domain Name to the Complainant. The explicit wording of the e-mail, the Respondentís threat to transfer the domain name to a Hungarian company and the fact that the Respondent is engaged in registering third party trademarks as domain names are strongly suggestive that the Respondent registered the domain name <mobilkom-austria.com> primarily for the purposes of selling it to the Complainant for a sum greater than out-of-pocket expenses. Such use of the domain name is use of the type contemplated by paragraph 4(b)(i) of the Uniform Policy, and accordingly is sufficient ground to persuade the Administrative Panel that the domain name <mobilkom-austria.com> was registered and is being used by the Respondent in bad faith.
The Panel thus decides that:
1) the domain name <mobilkom-austria.com> is confusingly similar to the trademark "Mobilkom-Austria";
2) The Respondent has no rights or legitimate interest with respect to the domain name <mobilkom-austria.com>;
3) the domain name <mobilkom-austria.com> has been registered and used in bad faith by the Respondent.
Pursuant to paragraph 4(i) of the Policy and pursuant to paragraph 15 of the Rules, the Panel requires that the Registrar, CORE Internet Council of Registrars, transfer the name <mobilkom-austria.com> to the Complainant.
Dr. Torsten Bettinger
Dated: May 29, 2001