WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Manfred Weidner GmbH & Co. KG v. AlleyCat Software
Case No. DBIZ2001-00051
1. The Parties
The Complainant is MANFRED WEIDNER GMBH & CO. KG, a company organised under the laws of Germany, having its principal place of business at Friedberg, (Josef-Wassermann-Strasse 50, 86316), Germany ("the Complainant").
The Respondent is ALLEYCAT SOFTWARE, a company organised under the laws of the United States of America, having its principal place of business at Rocklin (5602 Montero Ct., California 95677), USA ("the Respondent").
2. The Domain Name and Registrar
The domain name at issue is <weidner.biz>.
The Registrar is Go Daddy Software, Inc. located at 14455 North Hayden Road, Suite 219, Scottsdale, AZ 85260, USA ("the Registrar").
3. Procedural History
The Complaint was submitted for decision in accordance with the Start-up Trademark Opposition Policy for .biz (the "STOP"), the Rules for Start-up Trademark Opposition Policy for .biz, (the "STOP Rules"), adopted by NeuLevel Inc. and approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .biz (the "WIPO Supplemental STOP Rules").
The Complaint was received by email by the WIPO Arbitration and Mediation Center (the "Center") on December 19, 2001. A hardcopy version of the Complaint dated December 14, 2001, was received by the Center on December 18, 2001.
On December 20, 2001, the Center sent an Acknowledgement of Receipt of Complaint to Complainant.
On January 7, 2002, the Center sent per email to Complainant a Request for Amendment to Complaint.
On January 10, 2002, Complainant submitted by email an Amendment to its Complaint. A hardcopy of this Amendment was received by the Center on January 18, 2002.
On January 22, 2002, the Center sent a Notification of the STOP Complaint and Commencement of Administrative Proceeding to Respondent, setting a deadline of February 11, 2002, by which Respondent could submit a Response to the Complaint.
On January 23, 2002, the Center received an email from the agent of Respondent requesting that the Complaint be sent to Weidner Architectural Signage, 4517 Franklin Blvd., Sacramento, CA 95820, USA, to the attention of: Mr Rick Weidner.
On January 25, 2002, the Center forwarded the Complaint to Weidner Architectural Signage.
On February 15, 2002, the Center sent a Notification of Respondent Default to Respondent.
On March 18, 2002, the Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date by email to the parties, in which Wolter Wefers Bettink was appointed as Sole Panelist.
4. Factual Background
Complainant has filed an intellectual property claim ("IP Claim") pursuant to the instructions and the format provided by NeuLevel.
On November 19, 2001, Respondent registered the domain name <weidner.biz>.
On November 22, 2001, NeuLevel notified Complainant that Respondent had registered the domain name <weidner.biz> and informed Complainant that it was entitled to commence a STOP Complaint against Respondent.
On December 14, 2001, Complainant filed the Complaint pursuant to the STOP.
5. Partiesí Contentions
Complainant is owner of the German trademark 39952877.6 WEIDNER. This trademark is registered for goods and services in the international classes 29, 30, 35 and 42.
Furthermore, the name "Weidner" is part of the Complainantís company name and is also the surname of the managing partner Manfred Weidner. The Weidner family has been in business under their family name of Weidner for more than 45 years.
Complainant states that Respondent has no rights in respect of the domain name <weidner.biz>.
As far as bad faith is concerned, Complainant states it is in his view impossible for Complainant to provide evidence of the bad faith use of the domain name, because the Respondent cannot have used the domain name <weidner.biz> at this stage of the procedure. Therefore, the complete IP-claim procedure in accordance with STOP can only provide the means for a Complainant to enforce its intellectual property rights if the decision is primarily based on the priority situation.
As Respondent has not submitted a Response to the Center, Complainantís contentions are uncontested.
6. Due Process
Where, as in this case, a Respondent does not submit a Response and the file does not contain any communication from Respondent, the rules of due process require the Panel to verify to the extent possible that Respondent is aware of the present proceedings. The Panel is satisfied on the basis of the file documents that this is the case.
A hard copy of the Complaint was sent by the Center to Respondentís address as mentioned under 1 above, by courier and by email. The Center has discharged its responsibility under Paragraph 4(a) of the STOP Rules to notify the Complaint.
7. Discussion and Findings
Under the STOP, a Complaint can only be filed by an "IP Claimant" who had filed an IP Claim for a particular alpha-numeric string. If that string becomes registered as a .biz domain name, NeuLevel notifies the IP Claimant and invites it to initiate a STOP proceeding within 20 days. The Panel has been informed by the Center that this period has been extended to 25 days. NeuLevel determines priority if there are multiple claimants on a random basis. Only the priority claimant will be invited to initiate a STOP Complaint, which is allocated a ticket number which allows dispute resolution providers to verify whether a STOP Complaint is filed by the priority Claimant. The service provider (in this case the Center) is required to advise the Panelist if a disputed domain name is subject to more than one claim. In the present case, no such advice has been given to the Panelist.
Complainant must under the STOP show and provide evidence that:
(a) the domain name is identical to Complainantís trademark or service mark (Paragraph 4(a)(i));
(b) Respondent has no rights or legitimate interests in the domain name (Paragraph 4(a)(ii));
(c) the domain name was either registered or used in bad faith (Paragraph 4(a)(iii)).
Since the decision to transfer a domain name may have serious consequences for the domain name holder, the evidence should be sufficient in all aspects to support such a decision. The absence of a Response from Respondent, as in this case, does not discharge the Panel from its duty to establish that the evidence is sufficient.
(a) Trademark Rights
Complainant has established that it has rights in the WEIDNER trademark. (See German trademark registration No. 39952877.6.) The WEIDNER mark is identical to the <weidner.biz> domain name.
Therefore, the Panel finds that Paragraph 4(a)(i) of STOP has been satisfied.
(b) Rights or Legitimate Interests
Complainant has stated that Respondent has no rights in the domain name <weidner.biz>. Complainant has, however, presented no meritorious arguments and submitted no evidence in support of this contention.
The Panel is of the opinion that Respondent does have a legitimate interest in the domain name <weidner.biz>. According to an email dated January 23, 2002, Respondent has registered the domain name <weidner.biz> on behalf of Weidner Architectural Signage and informed Complainant thereof. Respondent also points out that Weidner Architectural Signage also owns the domain names <weidnersignage.biz> and <weidnersignage.com>.
At the moment, under the domain name <weidner.biz> a website with information about Weidner Archtitectural Signage can be visited. The website provides a link to the website <weidnersignage.com> and provides information about the aforementioned company. According to the website, this company was incorporated in 1955 by Ed Weidner.
The current registration details in the WHOIS database of the domain name <weidner.biz> show that the administrative contact is Rick Weidner of Weidner Architectural Signage. The billing contact is also the same Rick Weidner of Weidner Architural Signage. Weidner Architectural Signage is located at 4517 Franklin Boulevard, Sacramento, California, USA. According to the current details in the WHOIS database, this location is also the (current) location of Respondent.
From the above, it follows that Respondent has a legitimate interest in the domain name at issue, since the company for whose benefit he registered the domain name was known under a name corresponding to the domain name before initiation of this dispute by Complainant.
(c) Bad Faith
As Complainant has failed to provide evidence that Respondent has no rights or legitimate interests in the domain name at issue, it is not necessary to answer the question whether Respondent has registered the domain name in bad faith. For completenessí sake it is mentioned that Complainant has admitted in the Complaint that it cannot prove that the domain name in question has been used in bad faith. Contrary to what Complainant states, however, it is not per se impossible to prove such bad faith at this stage. Circumstances which in a particular case may indicate bad faith, include the awareness by Respondent of Complainantís trademark, an offer for sale of the domain name by Respondent for a price exceeding the out-of-pocket costs for the registration, use of the domain name for a website whose content tarnishes the reputation of Complainantís trademark or a false suggestion of affiliation (through a website or otherwise) with the Complainant.
None of these nor any other relevant circumstances have been brought forward by Complainant, let alone that it has provided any evidence thereof.
Moreover, the Panel notes that Complainant has refrained from submitting a copy of the correspondence that, according to Respondentís email of January 23, 2002, was exchanged between the parties prior to instituting these proceedings. In that email, Respondent states:
"Obviously, Weidner (Weidner Architectural Signage) has answered this German Companys (i.e. Complainant; WBB) claim before. Weidner has been in business longer that the Germans and has followed all of the rules in obtaining the websites they now own. Mr. Raible is clearly trying to steel the website Weidner has by ignoring our rights to this website, which under the rules was awarded to us."
On the basis of the foregoing, the Panel decides that the Complaint should be denied.
Wolter Wefers Bettink
Dated: April 8, 2002