WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Crown Audio Inc., D/B/A Crown International v. Yuri Gutsatz Réalisation
Case No. D2001-0722
1. The Parties
The Complainant in this administrative proceeding is Crown Audio, Inc., d/b/a Crown International, a corporation of the state of Delaware, U.S.A., located and doing business at 1718 West Mishawaka Road, Elkhart, Indiana 46517, U.S.A.
The Respondent in this administrative proceeding is Yuri Gutsatz Realisation, rue de l'Hopital, Venasque, Vaucluse 84210, France.
2. The Domain Name and Registrar
The domain name at issue is <amcron.com> (hereinafter referred to as the Domain Name).
The Registrar of the Domain Name is Bulkregister.com, Inc.Tucows.com, Inc., (hereinafter referred to as the Registrar).
3. Procedural History
On May 31, 2001, Complainant filed a complaint with the WIPO Arbitration and Mediation Center (hereinafter referred to as the Center). The Complaint was received by email on May 31, 2001, and in hardcopy on June 6, 2001.
On June 6, 2001, Acknowledgement of Receipt by the Center was sent to the Complainant.
On June 12, 2001, the Registrar provided the Center with the full contact details available in its WHOIS database for the Domain Name registrant and confirmed that:
- a copy of the Complaint was sent to it by the Complainant;
- it is the current Registrar of the domain name registration;
- the Respondent is the current registrant of the Domain Name registration;
- the Uniform Domain Name Dispute Resolution Policy (hereinafter referred to as the ICANN Policy) applies to the Domain Name.
The Center proceeded to verify that the complaint satisfied the formal requirements of the Rules for Uniform Domain Name Dispute Resolution Policy (hereinafter referred to as the ICANN Rules) and the World Intellectual Property Organisation Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (hereinafter referred to as the WIPO Rules), including the payment of the requisite fees. The verification of compliance with the formal requirements was completed in the affirmative on June 13, 2001.
The Panel has reviewed the documentary evidence provided by the parties and the Center and agrees with the Centerís assessment that the Complaint complies with the formal requirements of the ICANN Rules and the WIPO Rules.
On June 13, 2001, the Center informed the Respondent of the commencement of the proceedings as of June 13, 2001, and of the necessity of responding to the Complaint within 20 calendar days, the last day for sending a response to the Center being on July 3, 2001.
In a letter dated July 4, 2001, the Center informed the Respondent that it was in default pursuant to the ICANN Policy and the WIPO Rules and that an administrative panel would be appointed based on the number of panelists designated by the Complainant.
On July 9, 2001, the Center responded to an e-mail received from the representative of the Respondent on July 5, 2001, in which the Respondent's representative stated that she was surprised that the Complaint had been sent via e-mail instead of by certified mail. The Center stated that the complaint had been sent via e-mail and by signed hardcopy form which was sent by courier.
On July 9, 2001, the Center received an additional e-mail from the representative of the Respondent, in which the Respondent, via its representative states that due to the fact that the Respondent lives in France, it is the French code of Civil Procedure that should govern the parties (service, delays, etc.). Furthermore, the Representative states that it had not received any notice that the proceedings were going to continue by default judgement.
On July 10, 2001, the Center issued a Notification of the Appointment of Administrative Panel and of the projected decision date to the parties.
On July 11, 2001, the Center received another e-mail from the Respondent's representative contesting the notification procedures implemented by the Center, and their non-conformity to the French laws.
Also on July 11, 2001, the Center received an e-mail from the Registrar confirming, upon further verification, that the Registration Agreement adhered to by the Respondent, upon registering the Domain Name, was in fact in the English language.
On July 23, 2001, the Panel issued an interim order, which was sent to all parties and the Center. The Panel addressed the legality of the notification issue, raised by the Respondent, and extended the delay for the Respondent to submit a Response, in the English language, to the Center no later than August 3, 2001.
On August 2, 2001, the Respondent e-mailed its Response to the Center and to the Panel (directly). The Response was drafted in the French language, contrary to the Interim Order. Consequently, the Panel will proceed as if no Response is deemed to have been submitted by the due date.
The Panel believes it was constituted in compliance with the ICANN Rules and the WIPO Rules and has also issued a Statement of Acceptance and Declaration of Impartiality and Independence.
While the Panel was originally obliged to issue a decision on or prior to July 24, 2001, in the English language, it has nevertheless decided to delay its final decision on the merits to ensure that the Respondent's rights were not automatically jeopardised by a procedural matter; hence the decision will be issued today.
4. Factual Background
The Panel finds that the following uncontested and unchallenged facts appear from the Complaint and the supporting documentation submitted with the Complaint.
To fully protect its rights to the AMCRON trademark, Complainant has registered the mark in a number of countries throughout the world, including in France, where Respondent is domiciled (Trademark Reg. No. 1608763; registration dated August 8, 1990). Complainant also registered said trademark in the United States, where Complainant is domiciled (Trademark Reg. No. 1, 192, 742; registration dated March 30, 1982).
Complainant has used AMCRON for over twenty-five years in connection with audio equipment, including audio amplifiers, equalizers, audio preamplifiers, audio filter systems, audio switchers, audio test equipment, voltage meters, loads, intermodulation distortion analyzers, and FM radio tuners.
Respondent is a competitor of Complainant. It markets low-priced audio equipment, including amplifiers, of a quality inferior to that of Complainant's audio products.
Pursuant to a WHOIS record search conducted by the Panel, on a proprio motu basis (see NCRAS Management LP v. R. Cole, WIPO Case No. D2001-0554), it seems that the Domain Name <amcron.com> was registered by the Respondent on February 13, 2000.
When one types Respondent's domain, <amcron.com>, into one's web browser, a page is pulled up that depicts Complainant's AMCRON trademark and logo, with a choice of three language options (depicted by three flags) for navigating the site.
If one clicks on the U.S. flag, for English, a new page is displayed, which poses the question "Is AMCRON one of the best amplifiers?" This page features two links, one each for the answers "yes" or "no."
Whichever link is selected, the site takes the user to a page depicting an audio amplifier identified as "Professional Sound System® Amplifier of the ear!" The page claims that the depicted amplifier is the "best sound, soundest investment." Whilst, the depicted amplifier is not Complainant's AMCRON product. Rather, it is Respondent's product.
5. Partiesí Contentions
i) Contentions of the Complainant with respect to its trademark rights
The Complainant alleges that it is the owner of numerous trademark registrations worldwide for the mark AMCRON, including registrations in France, where Respondent is domiciled (Trademark Reg. No. 1608763; registration dated August 8, 1990). Complainant also registered said trademark in the United States, where Complainant is domiciled (Trademark Reg. No. 1, 192, 742; registration dated March 30, 1982).
To support its contentions, the Complainant provided evidence of its French and U.S. trademark registrations at Annex 3 of the Complaint. Complainant further alleges that it has used the trademark AMCRON for over twenty-five years in connection with audio equipment, including audio amplifiers, equalizers, audio preamplifiers, audio filter systems, audio switchers, audio test equipment, voltage meters, loads, intermodulation distortion analyzers, and FM radio tuners.
The Complainant alleges that it has spent several years and millions of dollars advertising, promoting and marketing its AMCRON products and the AMCRON mark throughout the world. As a result of Complainant's activities, the AMCRON mark has become well-known to consumers and the trade, and has acquired distinctiveness, substantial goodwill, and an excellent reputation, such that consumers and the trade associate the AMCRON mark exclusively with products that come from Complainant.
ii) Contentions of the Complainant with respect to the Identity or Confusing Similarity between the Domain Name and its Trademarks
The Complainant alleges that the Domain Name is identical to the Complainant's trademark, AMCRON. The Complainant further alleges that since the page featuring Respondent's product is accessed via the domain name <amcron.com>, users would be likely to believe, and would be justified in believing, that the product was actually Complainant's AMCRON product, or a product somehow affiliated with or sponsored by Complainant, when this is not the case. Therefore, confusion in the marketplace is likely to result.
iii) Contentions of the Complainant with respect to the Absence of Rights or Legitimate Interests of the Respondent
The Complainant alleges that the Respondent has no rights or legitimate interests in respect to the Domain Name.
The Respondentís commercial web site at <amcron.com> depicts products that are not Complainant's AMCRON products. The Complainant included screen shots of the website at Annexes 4, 5 and 6 to its Complaint.
Furthermore, the Complainant alleges that the Respondent cannot claim, in good faith, that it made a legitimate non-commercial or fair use of the Domain Name, or that it is commonly known by the name AMCRON.
iv) Contentions of the Complainant with respect to the Registration and Use of the Domain Name in Bad Faith
The Complainant alleges that Respondent is using the domain <amcron.com> in bad faith. Respondent uses the domain solely in an attempt to attract, for financial gain, Internet users to Respondent's site, by creating a likelihood of confusion with the Complainant's AMCRON mark as to the source, sponsorship, affiliation or endorsement of Respondent's product. In so doing, Respondent is trading off the extremely valuable goodwill and excellent reputation Complainant has developed in the AMCRON mark through its many years of advertising and promotion. Respondent seeks to benefit from the confusion that will inevitably result from its unlawful actions.
The Complainant further alleges that Respondent's registration and use of <amcron.com> is confusing and misleading to the public and to the trade, and causes damage to Complainant's reputation and goodwill, as well as financial damage to Complainant.
The Panel has already granted one reprieve to Respondent, when it relieved Respondent from foreclosure and allowed the submission of a Response after the entry of default. The July 23, 2001, Administrative Panel Interim Procedural Order clearly stated that the language in this matter is English and that the Respondent must abide by the rule and submit its response in English. The Respondent, with its stubborn behaviour and non respect of the Panel's Interim Order would have been found in contempt, had this been a judicial body; in any event, this is not an issue here. By filing a Response in the French language, the Respondent has in fact forfeited its right to be heard in this administrative proceeding.
Consequently, pursuant to ss. 5(e) and 14 of ICANN Rules, the Panel shall decide the dispute solely based upon all the facts as well the allegations found in the Complaint. However, even in the absence of a Response, the burden of proof remains upon the Complainant. As noted below, a Complaint will not be automatically successful in the outcome of the administrative proceeding, if the Complainant does not successfully establish all three essential elements required by the ICANN Policy (specified in the following section).
6. Discussion and Findings
Pursuant to the ICANN Policy, and as noted above, the Complainant has the burden, on the balance of probabilities, to convince the Panel of three elements if it wishes to have the domain name transferred. It is incumbent on the Complainant to cumulatively demonstrate:
i) that the Domain Name is identical or confusingly similar to a trademark in which it holds rights; and
ii) that the Respondent has no rights or legitimate interests in the Domain Name; and
iii) that the Domain Name was registered and used in bad faith.
These three elements are considered below.
i) Identity or Confusing Similarity between the Domain Name and Complainant's trademark
The Panel has carefully reviewed the documentary evidence provided by the Complainant regarding its rights in the trademark AMCRON and finds that the Complainant has satisfactorily shown that it owns such rights.
With respect to the confusing similarity between Complainant's trademark and Respondent's Domain Name, it is the Panelís opinion that the Domain Name registered by the Respondent is identical to the Complainantís trademark AMCRON and hence, is likely to cause confusion amongst the public.
The Panel finds that the disputed Domain Name is likely to attract, for the benefit of the Respondent, customers of the Complainant seeking to access the Complainantís products and/or services or information relating thereto; this fact alone is sufficient to conclude that the Domain Name is confusingly similar to Complainant's AMCRON trademark.
Therefore, the Panel finds that the Domain Name is similar to Complainant's trademarks.
ii) Rights or Legitimate Interests in the Domain Name by Respondent
In the present dispute, the Complainant has introduced unchallenged evidence that it owns rights in the trademark AMCRON (see Annex 3 to the Complaint) and that the Domain Name is used to redirect consumers to a web site promoting the Respondent's products in association with the complainant's AMCRON trademark, in which the Respondent has no rights (see Annexes 4, 5 and 6 to the Complaint).
Furthermore, there is no evidence adduced that would allow the Panel to conclude that some circumstances enumerated at paragraph 4(c) of the ICANN Policy apply to Respondent's situation.
By exerting its trademark rights, demonstrating that Respondent is not licensed by the Complainant to use those marks, and stating that Respondent's web site has no affiliation with the Complainant, the Complainant has established prima facie that the Respondent has no rights or legitimate interests in the Domain Name.
While no direct conclusion can be automatically drawn from a failure by Respondent to provide explanation, in some circumstances, a negative inference can be drawn from the lack of justification by the Respondent, especially when direct evidence, such as the present use of the Domain Name, points in the direction of an absence of rights or legitimate interest.
In the present case, as was the case in LLS International v. Mark Freeman, WIPO Case No. D2000-1080 and Altavista Company v. Grandtotal Finances Ltd., WIPO Case No. D2000-0848, the Panel finds it appropriate in this regard to draw an adverse inference from the Respondentís failure to reply to the Complaint and detail any legitimate rights or interests it might have had in the Domain Name of the type defined in paragraph 4(c) of the ICANN Policy.
For these reasons, the Panel concludes that, on balance of probabilities, the Respondent has no rights or legitimate interests in the Domain Name.
iii) Bad faith in Registration and Use of the Domain Name by the Respondent
Paragraph 2 of the ICANN Policy provides that, when someone registers a domain name, he represents and warrants to the registrar, notably, that, to his knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party. The same paragraph also provides that it is incumbent on the person who registers the domain name to determine whether the domain name registration infringes or violates someone else's rights.
In the present case, the Panel finds that, since Complainant's trademark AMCRON was registered in France, which happens to be the geographic location of the Respondent, compounded by the fact that the Respondent seems to be a direct competitor of the Complainant (dealing in the selling of audio equipment), it is very unlikely that when Respondent registered the Domain Name, it wasn't aware that it was infringing on Complainant's trademark rights (see e.g. Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137).
Again as mentioned in the previous sub-section of the Panel's Discussion and Findings, while no direct conclusion can be automatically drawn from a failure by Respondent to provide a Response, in some circumstances, a negative inference can be drawn from the lack of justification by the Respondent, especially when direct evidence, such as the present use of the Domain Name, points in the direction of an absence of good faith.
Moreover, the Panel is of the opinion that the evidence, as submitted by the Complainant, tends to demonstrate that the Respondent registered the Domain Name with the purpose of intentionally attempting to attract, for commercial gain, Internet users to its web site by using the goodwill and positive reputation in the field of audio equipment attached to the Complainant's AMCRON trademark.
This finding is supported by the allegation and evidence provided thereto, verified by the Panel, (Annexes 4, 5 and 6 of the Complaint) made by the Complainant purporting to establish that the Domain Name is leading to a web site that depicts Complainant's AMCRON trademark and logo, in association with Respondent's products (in this case an amplifier), when in fact, the depicted amplifier is not Complainant's AMCRON product. Rather, it is Respondent's product. This supports the contention that use of the registered Domain Name by Respondent was an attempt to appropriate the goodwill of the Complainant and to cause confusion amongst some people-who learned of the Domain Name-into believing that this Domain Name, its proprietor or the products on its associated website, were associated with the Complainant, and to redirect traffic intended for the Complainant for its own purposes.
Furthermore, the Panel is of the opinion that the Domain Name is so obviously connected with the Complainantís trademark and its services that its very use by someone with no connection with the Complainant suggests "opportunistic bad faith" (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226 and Veuve Cliquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163).
It is the Panel's opinion that the Respondent attempts to piggyback on the goodwill vested in Complainant's trademarks and finds that this behaviour, in line with paragraph 4(b) of the ICANN Policy, constitutes evidence of bad faith in the registration and use of the Domain Name.
For the foregoing reasons, the Panel concludes that:
- the Respondent, by deliberately choosing to respond to the allegations in the Complaint in the French language, which is contrary to the Panel's Interim Order, is deemed to not have responded;
- the Domain Name registered by the Respondent is confusingly similar to trademark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the Domain Name;
- the Domain Name has been registered and is being used by the Respondent in bad faith.
Pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <amcron.com> be transferred by the Registrar, BulkRegister.com, to the Complainant.
Jacques A. Léger, Q.C.
Dated: August 9, 2001