WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

V&S Vin&Sprit AB v. Mattias Nordin

Case No. DNU2002-0001

 

1. The Parties

Complainant is V&S Vin&Sprit AB, Förmansvägen 19, 117 97 Stockholm, Sweden. Complainantīs authorised representative in this case is Helena Rosenberg Northon of Domain Network Stockholm AB, Alsnögatan 11, 7tr, Box 4712, 116 92 Stockholm, Sweden.

Respondent is Mattias Nordin, Hjalmar Brantingsgatan 29, 753 27 Uppsala, Sweden. Respondentīs authorised representative in this case is Andreas Lifvendahl, Fålhagsleden 1 C, Sweden (supposedly also in Uppsala, but no clear indications in this sense have been given).

 

2. Domain Name and Registrar

The domain name at issue is <absolut.nu>.

The Registrar is .NU Domain Ltd., 266 Main Street, Medfield, Massachusetts, United States of America.

 

3. Procedural History

The World Intellectual Property Organization Arbitration and Mediation Center (the Center) received a Complaint in electronic form on February 12, 2002, and in hard copy form on February 7, 2002. On February 8, 2002, the Center acknowledged receipt of the Complaint.

On February 12, 2002, upon request the Center received a Registrar Verification Response. In that Response, the Registrar stated that:

- it had received the Complaint sent by Complainant;

- the domain name at issue is registered with the Registrar;

- Respondent Mattias Nordin is the current registrant of the domain name at issue;

- The incept date was November 21, 1997, and payment made through November 21, 2002;

- The domain name owner and Billing Contact as well as Technical Contact is: Mattias Nordin, "mattias.nordin@iar.se", Webmaster, SweSys with the address indicated above for Respondent;

- The Uniform Domain Name Dispute Resolution Policy applies;

- The status of the domain name registration is "Active"; and

- .NUīs Domainīs Terms and Conditions for Registering a .NU domain name, Paragraph 26, prescribes, under the heading GOVERNING LAW, that the "Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of MassachusettsÖ." Furthermore, the Agreement prescribes that "ÖÖ..you and we each submit to the exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for MassachusettsÖ"

On February 13, 2002, the Center issued a Notification of Complaint and Commencement of Administrative Proceeding. On March 4, 2002, the Center received a Response from Respondent in e-mail form of which the Center acknowledged receipt on March 5, 2002. According to the Response a copy of it had been communicated to Complainant on March 4, by mail.

The Center invited Mr. Henry Olsson to serve as a Sole Panelist in the case and received on March 12, 2002, Mr. Olssonīs Statement of Acceptance and Declaration of Impartiality and Independence. The same day the Center appointed Mr. Olsson as Sole Panelist and issued a Notification of Appointment of Administrative Panel and Projected Decision Date that was communicated to the Parties.

The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the WIPO Supplemental Rules.

As mentioned below under Partiesī Contentions, the Parties were, by decision of the Panel on March 13, 2002, allowed to file certain additional submissions.

 

4. Factual Background

V&S Vin&Sprit AB (V&S) is a Swedish joint stock company founded in 1917. It has 1400 employees and had a turnover in 2000, of 5,7 billion Swedish Crowns. One of the products it sells is vodka, the sales of which commenced under the trademark ABSOLUT in the United States in 1979, and in Sweden and other parts of Europe around 1980-1981.

According to the Response, Respondent holds currently a position as Systems Manager at IAR Systems AB. Other elements concerning Respondentīs activities are mentioned below in connection with the Response.

 

5. Partiesī Contentions

In their submissions both Complainant and Respondent have made reference to a number of earlier domain name cases and also offered interpretations Ė sometimes conflicting ones - as regards their relevance to this case. Both these references and the argumentation of the Parties is rather comprehensive and the Panel does not indicate all the details under this heading. In particular, the Panel does not give judgements concerning the Partiesī interpretation of the various earlier cases which they have referred to. What is reproduced below is thus but a summary of Partiesī contentions as included in the Complaint, the Response and the additional submissions.

As Complainant requested admission to file an additional statement in view of the Response, the Panel decided on March 13, 2002, that:

- Complainant would be allowed to file any additional statement, by e-mail to the Center by Thursday March 14, 2002;

- the Statement would be immediately communicated to Respondent who will be admitted to file with the Case Manager any observations on the Statement by Monday, March 18, 2002, at 16.00;

- The Panel will not admit any further statements from the Parties;

- The Center will by the same Monday, March 18, immediately transmit submitted Statements to the Panel; and

- The Panel advises that, in view of the circumstances, it may be necessary to extend the Projected Decision Date.

Complainant filed an Additional Submission on March 14, 2002, at 4.27 pm. The Center communicated immediately that Submission to Respondent. Respondent in turn submitted Comments on Complainantís Additional Submission, on March 18, before 4.00 pm. The contents of these Submissions is briefly reproduced below.

A. Complainantís Original Complaint

General

First, Complainant submits that the dispute is properly within the scope of the Policy and that the Administrative Panel has jurisdiction to decide the dispute as the registration agreement pursuant to which the domain name that is the subject of the Complaint incorporates the Policy. Complainant contends that Respondent is required to submit to a mandatory administrative proceeding because 1) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights, 2) Respondent has no rights or legitimate interests in respect of the domain name and, 3) the domain name was registered and is being used in bad faith.

Complainant contends that, due to huge marketing efforts and famous advertising campaigns, the trademark ABSOLUT has become extremely well known in the society and in the circle of consumers and trade. The trademark is also used in connection with other goods and services than vodka and is according to Business Week of August 6, 2001, ranked as the 93rd most valuable trademark asset in the world. ABSOLUT is the 3rd best selling trademark for premium spirits all categories on a world-wide basis. To support these contentions Complainant has submitted extracts from various business magazines.

Complainant has obtained trademark protection for its trademark in more than 100 countries and has registered the trademark as a domain name in over 200 countries. To support these contentions Complainant has submitted lists of registrations of the trademark in question and copies of registrations, etc.

Complainant furthermore contends that the mark is inherently in possession of distinctiveness. According to Complainant "the awareness of the trademark ABSOLUT is considered in the whole Community to be significant." Also, according to Complainant, in the United States the trademark is considered to be "famous." From Article 6bis of the Paris Convention for the Protection of Industrial Property follows that the statute of a reputed trademark provides the owner of such a mark with the right to prevent any use of the reputed trademark in connection with any products or services, regardless of the list of products and services for which the trademark is registered; thus, the protection for ABSOLUT goes far beyond vodka and goods similar to vodka.

As a general statement Complainant furthermore contends that it is very restrictive with how its trademark is used and spends a lot of money and effort every year to watch it and regularly follows up non-authorised users in order to preserve the value of the trademark.

Identity or Confusing Similarity

More specifically, the Complainant first contends that the domain name at issue is identical or confusingly similar to a trademark or a service mark in which Complainant has rights, as the dominant part of the domain name comprises the word ABSOLUT which has been registered by Complainant as a trade name, domain name and trademark worldwide.

Rights or Legitimate Interests

To support its contention that Respondent has no rights or legitimate interests in the domain name Complainant first mentions that Respondent registered the domain name in 1997, which is subsequent to the time when the majority of Complainantís trademarks were registered. Complainant contends that Respondent registered the domain name at issue in order to sell computers and accessories in its business. According to Complainant this was thus done in order to attract and increase Internet traffic to Respondentís site and its company by using a famous trademark and that Respondent now uses the domain name, inter alia, in order to partly advertise himself as a private person. According to Complainant there is no independent offering of goods or services by Respondent under the domain name at issue; however, a part of the site is put "under reconstruction" and has been so for a while and it is not clear what the intention of Respondent is for this part in the future.

Complainant refers to a number of other domain name cases with similar circumstances in order to support the contention that Respondent could have no legitimate interest in the domain name and to show that rights or legitimate interests can not be created where the user of the domain name would not choose such a name unless he was seeking to create an impression of association with Complainant. Complainant has invoked a survey from 1990, attached as an Annex to the Complaint, about the awareness within the Swedish population about ABSOLUT and claims that it is very likely that Respondent, who was 17 years at the time, must have been aware of the famous trademark. From that survey follows, in the view of Complainant, that ABSOLUT is a reputed trademark in Sweden and it is very likely that Respondent was aware of the association of the famous name ABSOLUT when choosing the domain name. Furthermore, as Complainant contends, the word ABSOLUT has no logical meaning or relation with the home page of Respondent.

Respondent has, according to Complainant, not shown that before any notice of the dispute he had made use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; an e-mail from Respondent of October 31, 2001, rather indicates that Respondent considers that the name is not important to Respondent but is significant in the sense that Respondentís friends can find him under that domain name. Complainant furthermore contends that the domain name does not coincide with the whole or part of Respondentís name, corporate name (SweSys Technologies) or any other legitimate interest of his own.

According to Complainant there has been no license or authorisation given by Complainant to Respondent to use or register the name or mark ABSOLUT.

As to the question whether Respondent has been commonly known by the domain name Complainant has provided certain statistics about the visits to Respondentís website as compared to Complainantís website "www.absolut.com" and concludes that Respondent can not be considered to be commonly known by the domain name.

Registration and Use in Bad Faith

On the basis of the surveys which has been referred to above about the awareness of the Swedish population of the trademark ABSOLUT Complainant contends that "it is out of question that the Respondent, a Swedish citizen, has been unaware of the famous trademark ABSOLUT when registering the domain name and the registration can only have been made in bad faith." Complainant adds that in view of the fact that the trademark ABSOLUT is old and registered in over 100 countries Respondent would not be able to use the domain name without creating an impression in the minds of the public that Complainant has licensed or authorised Respondent to register the trademark or that Respondent had some kind of connection with Complainant.

Complainant furthermore contends that Respondentís use and registration of the domain name is highly likely to cause confusion as to the source that Respondent posts and to mislead the public, particularly consumers, into thinking that Respondentís domain name is linked to Complainant. Complainant adds in this context that Respondent has intentionally by first establishing a company and put up a website attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the mark of Complainant as to source, affiliation or endorsement of Respondentís website. Complainant states that the protection of the investments made in this case by Complainant for giving the trademark the reputation that it has to-day is of primary importance and that, therefore, Complainant constantly works to protect the mark and to prevent others from attempting to exploit the reputation of it in order to attract others to websites.

According to Complainant, Respondent continued the use of the domain name also after receiving a warning letter from Complainant and has also in that sense continued to use the domain name in bad faith.

Finally Complainant concludes, with reference to some earlier cases, that, because the trademark at issue is such a well-known and famous name and so connected with Complainant and its activities, its very use by someone with no connection to Complainant suggests "opportunistic bad faith."

Remedy Requested

On the basis of the contentions referred to above, Complainant requests that the Administrative Panel issue a decision that the contested domain name be transferred to Complainant.

B. Respondentís Original Response

General

Respondent has submitted a comprehensive Response. First, Respondent comments on the factual background, Respondentīs use of the domain name, background proceedings and Complainantís arguments and references to precedence cases. Then Respondent more specifically deals with the three criteria under Paragraph 4.a of the Policy. Like Complainant a number of annexes have been submitted to support various statements but all those annexes are not explicitly referred to here.

Respondent initially states that it registered the domain name at issue in 1997, in good faith for the sole purpose of using it as his private home page, increase his webpage design skills, participate in the Internet community and provide various kinds of services and activities; no commercial activity has ever been conducted under the domain name. The domain name at issue was in fact selected because it was an easy-to-remember and striking phrase in the Swedish language as <absolut.nu> means, in English, "just now." Thus, it forms a generic expression; quite a different matter would have been, for instance, <absolut.com> or <absolut.se>. Respondent stresses that the complete domain name should be seen as a generic expression. Even if Respondent at a mature age was in fact aware of the vodka brand ABSOLUT VODKA it did not at the time of the registration of the domain name make any connection that the word "absolut" standing alone could be a trademark defended by Complainant, inter alia because ABSOLUT VODKA is always spelled in capital letters. There is, according to Respondent, many occurrences where the word "absolut" exists in domain names and site headlines which do not belong to Complainant, and Respondent has submitted some material to support this statement.

Respondent also contends that the Complainantís trademark registration was not approved by the Swedish Patent Office until 1993 (indicated in Respondentís later submission to be 1988), because of the restrictive practice in admitting commonly used words as trademarks. Therefore, Complainant had to take expensive measures to establish reputation and awareness.

In relation to the use made of the domain name, Respondent contends that it never made any commercial gain from the links provided to other computer-related sites. Respondent registered a company "SweSys Technologies" in 1998, in an attempt to learn how to run a business, but the business never became more than providing Respondent itself and friends with distribution-priced computer peripherals. The company was later put to rest and, according to Respondent, there was at no point in time any link provided under <absolut.nu> to a company conducting business on behalf of Respondent. There are, according to Respondent no arguments why Respondent would be interested in attracting Internet surfers seeking for information on vodka when Respondentís site contains no reference to, or information on, spirits at all.

With reference to certain earlier cases, Respondent submits that Complainant has failed to prove that the name <absolut.nu> was in fact registered with Complainantís trademark in mind; Complainantís attempt to create a likelihood of Respondentís motive is not enough.

Furthermore, with reference to another case, Respondent suggests that using a generic word as a trademark inherently puts barriers on the reasonable protection zone. According to Respondent: "A private non-commercial home page containing computer related links and free utilities and the hard liqueur industry are indeed worlds apart."

Identity or Confusing Similarity

Respondent indicates that it does not challenge that Complainant has a legitimate right to the trademark "ABSOLUT VODKA" nor that the domain name is confusingly similar to Complainantís mark.

Rights or Legitimate Interests

On the basis of the statements referred to under the heading "General" above and also with reference to the contents of Paragraph 4 c. of the Policy and some earlier cases Respondent contends that Complainant has neither proved that the domain name was registered in order to attract Internet users by creating a likelihood of confusion, nor that this would have made for commercial gain. In particular, Respondent suggests that Complainant provides contradicting statements on whether Respondent registered the domain name in order to sell computers and accessories; in fact, according to Respondent, Complainant has stated that "there is no independent offering goods or services by Respondent under the disputed domain name".

Registration and Use in Bad Faith

In this respect and with reference to Paragraph 4.b i) iv), Respondent states that there is no evidence that Respondent has engaged in a pattern of speculative domain name registration or that "the claimed reason for registering the domain name is a sham." Respondent adds, in particular, that, as mentioned in the previous parts of the Response, Respondent is a private person with absolutely no interest in the hard liqueur industry. It must, according to Respondent, be obvious for a site visitor at <absolut.nu> within seconds that the site has no connection with Complainant.

C. Further Submissions

Complainantís Additional Submission

On March 13, 2002, Complainant filed an additional submission in which Complainant comments on various contentions by Respondent. Also here the statements are reproduced only in summary form.

As regards the question whether ABSOLUT is a generic word Complainant reiterates that the word at issue is a registered trademark which in several judgements has been found to be a distinctive mark with reputation; for instance the Swedish Patent Court of Appeals has found that ABSOLUT BRÖD ("absolut bread") could not be a registered trademark because it would constitute undue use of the sign ABSOLUT.

As regards the association of the symbol ABSOLUT to vodka Complainant refers to various surveys referred to in the original Complaint and contends, on the basis of these surveys, that a majority of the Swedish people associates the mark ABSOLUT with vodka and that it is, therefore, very likely that Respondent was aware of the famous brand "ABSOLUT" and its association with vodka when registering the domain name.

Complainant also comments on Respondentís statement that no commercial activity has ever been conducted under the domain name <absolut.nu>. Complainant refers to printouts from various homepages by Respondent and states, inter alia, that the same year as Respondent registered the domain name at issue it also registered the company "SweSys Technologies" which, according to the homepage, was used to sell computers and accessories; Respondent also bought computer components and put them together; Even if Respondent later put the company to rest, it is, according to Complainant, still marketed on the homepage. Furthermore, according to Complainant (with reference to one of the Annexes to the original Complaint), the homepage SweSys site is hosted as a sub catalogue to "www.absolut.nu" and thus is obviously linked to the domain name; there are, on the site, also several links to other companies within the same area as the one where Respondentís works and is specialised in. Complainant contends that it is obvious that Respondent has, in accordance with Paragraph 4.b (iv) of the Policy, intentionally attempted to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with Complainantís mark as to source, sponsorship, affiliation etc.; by registering this famous mark Respondent has for commercial gain mislead consumers in order to attract Internet users to its website that would in normal circumstances not visit that website.

As to Respondentís knowledge of domain names and related rules on the Internet, Complainant first contends that if Respondent had made a trademark search at the time of registering the domain name at issue, it would have been made aware of the owner of the trademark ABSOLUT. Furthermore, according to Complainant, Respondent Ė who describes itself as an "Internet Entrepreneur" - would know the advantage of registering a famous name as a domain name as this would provide a good ranking in the search engines. Complainant also comments on Respondentís statement concerning the fact that a domain name must reflect and relate to the content of a site and thus is intrigued that Complainant owns the domain names <absolutporn.com> and <absolutpussy.com>. As to this, Complainant responds that those two domain names have been transferred to Complainant because it is from a trademark point of view the owner of the mark ABSOLUT.

Complainant comments on Respondentís statement that it found it remarkable that it took Complainant four years to locate the domain name. Complainant states that, as found in an earlier case, Complainantís failure to register a disputed domain name before Respondent did so does not preclude Complainant.

Complainant comments on the reference that Respondent makes to various earlier cases where a generic term, word or expression has been used as a domain name. In essence, Complainant replies that those cases can not be applied to the present case because the mark ABSOLUT is a famous registered trademark which is not the situation in the cases Respondent refers to.

Finally, Complainant also comments on Respondentís possible rights and legitimate interests, Complainant reiterates, inter alia, that ABSOLUT is inherently in possession of distinctiveness and that the mark would be "reputed" and "famous" under trademark law and thus the protection would go beyond vodka and goods similar to vodka.

Respondentís Additional Submission

Respondent first submits that there is in Complainantís new submission basically nothing new or of relevance to the Response. In the following part of its submission, Respondent makes, however, some additional observations.

As regards the question whether ABSOLUT is a generic word Respondent reiterates that "Using a generic word as a trademark, inherently puts barriers on the reasonable protection zone." Furthermore, Respondent rejects the parallel with the case ABSOLUTE BRÖD as this is in Respondentís view of no relevance due to the different legal context in that case and the case at hand.

As regards the commercial activity linked to the domain name at issue Respondent stresses that Respondent has already in the first Response proved that it has drawn no commercial gain from the domain name and that Complainant has failed to prove the likelihood of Respondentís awareness of the trademark ABSOLUT at the time of the registration and that this was done in mala fide and for own commercial gain. With reference to the number of visitors to the different websites, Respondent that the fact is that Respondentís site is a private, non-commercial website with a number of visitors pretty much in line with what could be expected from this kind of webpages.

Respondent also comments on the issue of Respondentís awareness about intellectual property legislation, about a statement by an intellectual property professor (invoked by Respondent in the Response), about Complainantís failure to register the domain name and about precedent cases. As regards the question whether Respondent might, after a decision in favour of it, again run commercial activities under the domain name, etc. Respondent replies that it is quite assured that that fact could be brought to a new WIPO Panel which could, on the basis of new circumstances, make an unbiased decision.

Finally, Respondent concludes that the decision in this case is of great importance as it will have a significant effect on future decisions. In respect of the contention that Respondent registered the domain name for commercial gain, Respondent stresses that the only circumstances invoked are the personal curriculum vitae of Respondent, the fact that <absolut.nu> has a link to the now dead company SweSys Technologies and the fact that the site also contains links to commercial enterprises in the computer/Internet area. If this was found to be enough for a decision in favour of Complainant, the result would be that a number of other domain names would be brought to WIPO panels something that may seriously disrupt the business of a number of companies.

 

6. Discussion and Findings

Paragraph 15 of the Rules prescribes that the Panel shall decide a Complaint on the basis of the statements made and documents submitted and in accordance with the Policy, these Rules and any principles of law that it deems applicable. In this case the Parties have submitted comprehensive statements, supported by extensive evidence. In addition, Complainant has been admitted to file an Additional Statement. Likewise, Respondent has been admitted to submit comments on Complainantís Additional Statement.

From the Registrar Verification follows that the Policy is applicable to this case. Consequently, Respondent is required to submit to a mandatory administrative proceeding as now initiated in respect of the domain name at issue.

Paragraph 4.a of the Policy directs that Complainant must prove each of the following:

- that the domain name registered by Respondent is identical with or confusingly similar to a trademark or a service mark in which Complainant has rights;

- that Respondent has no rights or legitimate interests in the domain name; and

- that the domain name at issue has been registered and is being used in bad faith.

In the following part of the Decision the Panel discusses each of those elements.

Identity or Confusing Similarity

In this respect Complainant has, according to Paragraph 4.a.(i) of the Policy, to prove that the domain name at issue is identical or confusingly similar to a trademark or a service mark in which Complainant has rights.

The domain name at issue is <absolut.nu>

Complainant has a number of registrations, both in Sweden and worldwide, of the trademark ABSOLUT. Respondent has stated that it does not challenge that Complainant has a legitimate right to the trademark ABSOLUT VODKA, nor that the domain name at issue is confusingly similar to Complainantís mark.

On the basis of the evidence presented, the Panel finds it to be properly established that Complainant has in fact rights in the trademark ABSOLUT under trademark law.

The domain name incorporates Complainantís trademark ABSOLUT with the addition of the notion ".nu." This is in the view of the Panel an insignificant distinction which does not remove the likelihood of confusion.

In view of the discussion between the Parties about the scope of protection for the trademark at issue the Panel finds it necessary to make some observations on the nature of protection of trademarks like Complainantís under Swedish and also European Community law.

A trademark is, according to Article 1, first Paragraph, of the Swedish Trademark Act

"a special symbol for the purpose of distinguishing goods which are made available in the course of a business activity."

Article 4, first Paragraph, sets out the basic contents of the protection granted to a trademark enjoying protection under the Trademark Act. That protection shall

"ÖÖÖimply that no person other than the owner is entitled to use, in the course of business activities, a symbol which is confusingly similar to the protected one for his goods or on their packaging, in advertising or on business documents or in any other way, including the oral use thereofÖÖÖ."

As then regards what is meant by "confusing similarity" Ė which is a condition when it comes to the question whether the right is infringed or not - Article 6, first Paragraph states:

"Symbols shall be deemed to be confusingly similar under this Act only if they relate to goods or services of the same kind or a similar kind." However, the second Paragraph of the same Article prescribes: Confusing similarity may be invoked also for the benefit of a symbol which has a reputation in this country if the use of another similar symbol would take unfair advantage of, or would be detrimental to, the distinctive character or reputation of the symbol having the reputation."

The provisions are based on provisions in a European Community Directive on harmonisation of trademark rights in the Community. The same scope of protection for trademarks would therefore apply basically throughout the Community. The provision implies that the scope of protection for reputed trademarks extends beyond the goods or services for which they are registered and goods or services that are similar to those for which the marks are registered.

Complainant has submitted extensive evidence relating to the awareness of the Swedish population of the trademark ABSOLUT and also about its ranking among the trademarks of the world. On the basis of the evidence thus presented the Panel is satisfied that the trademark ABSOLUT for the purposes of this domain name case should be considered to be a trademark having a reputation according to Article 6, second Paragraph, of the Swedish Trademark Act. The Panel underlines that the protection of a trademark is valid as such only in relation to - to use the words of the Trademark Act - "business activities". This applies also to trademarks containing words which are per se generic but which have obtained the status of trademarks by registration or establishment on the market. Consequently, in the case at issue the trademark protection does not mean that the per se generic word "absolut" enjoys an all-embracing protection against every kind of use.

Rights or Legitimate Interests

In this respect, Complainant has, according to Paragraph 4.b.(ii) of the Policy, to prove that Respondent has no rights or legitimate interests in the domain name at issue. Paragraph 4.c then outlines a number of circumstances which, in particular but without limitations, shall, if found to be present by the Panel, demonstrate Respondentís rights or legitimate interests in the domain name. Those are basically, (i) use or demonstrable preparations for use of the domain name with a bona fide offering of goods or services before notice of the dispute, (ii) Respondentís being commonly known by the domain name, or (iii) Respondentís making legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant has contended that none of the three situations mentioned in Paragraph 4.c are present and has added that there "can be no doubt" that Respondent as a Swedish citizen was aware of the association of the name ABSOLUT when choosing the domain name. Respondent has contested this, principally on the basis that Complainant has not proved that the domain name was registered for the purpose of attracting Internet users by creating a likelihood of confusion and also not proved that the registration was carried out for commercial gain.

The Panel notes that, in the homepage "www.absolut.nu", Respondent informs, in Swedish and in English, about Respondentís educational background and career and also states that he registered and created the website "absolut.nu" which site "is still up and running" Furthermore indication is given that Respondent registered his company SweSys Technologies" and used it to "sell computers and accessories and to buy computer components and put them together." According to a printout of another homepage for SweSys Technologies, Uppsala, it is there stated (in Swedish) that this is a company owned by Respondent but that the webpage is put to rest for the time being, with the addition "back to "www.absolut.nu."

On the basis of the evidence presented the Panel first comes to the conclusion that Respondent as a person domiciled in Sweden must have been aware of the existence of the Swedish trademark ABSOLUT and its reputation at the time of the registration of the domain name at issue. Respondent was perhaps not aware of the intricacies of the relations between trademarks and domain names but Respondent should, in such a situation have been particularly careful, both as regards the registration as such of the domain name at issue and as regards its further use.

The question is then the nature of the activities that Respondent has been engaged in by using the domain name at issue or, in other words, whether Respondent has commercially been exploiting the confusion created between Complainantís reputed trademark and the domain name at issue.

In this respect the Panel finds it established that Respondent has carried out certain activities using the website SweSys as a sub-catalogue to the website under the domain name at issue, by providing certain links to other related activities and also that Respondent has under that domain name provided a kind of personal promotion of himself and his professional skills in the field concerned.

As indicated above, Respondent must have been aware of the existence of the trademark ABSOLUT and about its fame both at the time of the registration of the domain name and even more so during the time when it has made use of that domain name. Respondent has not hesitated to register and use the domain name despite the fact that it contains the essential part of Complainantís trademark. These circumstances point in one direction, namely that the registration and the use of the domain name have been carried out in order to attract more customers to the website under that domain name and consequently also to Respondentís own activities as advertised and presented at the website under "absolut.nu". In the view of this Panel those activities are of a direct and indirect professional and commercial character. They can therefore not be considered to be a legitimate non-commercial or fair use of the domain name without intent for commercial gain or to misleadingly divert consumers to Respondentís own website. From this point of view it is of no relevance that any potential customer visiting the website "absolut.nu" would very soon realise that the site did not deal with the activities of Complainant; Respondent has at that stage already obtained usersī interest for the website and possibly for Respondentís own activities.

The Panel furthermore finds that Respondent has not been commonly known by the domain name or that any other circumstances are present in the case to show that Respondent has rights or legitimate interests in the domain name at issue.

On the basis of these considerations the Panel concludes that it has been sufficiently established that Respondent has no rights or legitimate interests in the domain name <absolut.nu>.

Registration and Use in Bad Faith

In this respect, Complainant has, according to Paragraph 4.a.(iii) to prove that the domain name at issue has been registered and is being used in bad faith. Paragraph 4.b (i) to (iv) contains an enumeration of circumstances which, in particular but without limitation, shall, if found to be present by the Panel, be evidence of registration and use of a domain name in bad faith.

First, the Panel notes that there is no evidence in this case that Respondent has engaged in any activity mentioned in Paragraph 4.b (i) to (iii), that is, acquisition of the domain name for the purpose of selling it etc., acquisition for the purpose of preventing the owner of the trademark from reflecting it in a domain name or acquisition for the purpose of disrupting the business of a competitor.

On the other hand and as also mentioned above, evidence available sufficiently establishes that Respondent registered the domain name in order to benefit from the reputation of the trademark ABSOLUT in order to promote Respondentís own professional and commercial activities. That evidence lies inter alia in the relations between the website under "absolut.nu" and that of SweSys Technologies which seems to be still advertised on the former website. Respondent must also have been aware of the fact that by using the notion "absolut" it would make it easier to attract Internet surfers to Respondentís own activities. Also, the Panel finds Respondentís allegation that <absolut.nu> was chosen because of its connotation of "just nu" or, in English, "right now" somewhat far-fetched; the combination of words may literally be given that meaning but is in the view of this Panel hardly the meaning which would automatically be the first one to appear in ordinary Swedish language.

On the basis of the evidence presented and the considerations just mentioned, the Panel finds it established that the domain name at issue, as mentioned in Paragraph 4.b(iv), was in fact intentionally registered and used in order to attract, for commercial gain, Internet users to Respondentís activities by creating a likelihood of confusion with Complainantís trademark as to the source, sponsorship, affiliation or endorsement of the website.

The Panel therefore finds it established that the domain name at issue has been registered and is being used in bad faith.

Conclusion

In the light of the foregoing the Administrative Panel concludes that the domain name <absolut.nu> is confusingly similar to Complainantís trademark, that Respondent has no rights or legitimate interests in the domain name and that Respondentís domain name has been registered and is being used in bad faith.

 

7. Decision

Pursuant to Paragraph 4.(i) of the Policy and in accordance with the request by Complainant the Panel requires that the domain name <absolut.nu> be transferred to Complainant.

 


 

Henry Olsson
Sole Panelist

Dated: March 20, 2002