WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bang & Olufsen a/s v. PC Kruse
Case No. D2005-1284
1. The Parties
The Complainant is Bang & Olufsen a/s, Struer, Denmark, represented by Sandel, Løje & Wallberg, Denmark.
The Respondent is PC Kruse, Sten Kruse, Gistrup, Denmark.
2. The Domain Name and Registrar
The disputed domain name <bang-olufsen.org> is registered with Ascio Technologies Inc. (DK).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2005. On December 12, 2005, the Center transmitted by email to Ascio Technologies Inc. (DK) a request for registrar verification in connection with the domain name at issue. On December 13, 2005, Ascio Technologies Inc. (DK) transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 21, 2005.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 23, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 16, 2006.
The Center appointed Ms. Jette Robsahm as the Sole Panelist in this matter on February 7, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The language of the proceeding is English.
4. Factual Background
Bang & Olufsen a/s is a Danish manufacturer of audio-visual products. It was founded in 1925 and has had uninterrupted activities since then. It is listed at the Copenhagen stock exchange.
Complainant is the owner of numerous registered trademarks world wide, among them the following:
CTM registration No. 000318113 – BANG & OLUFSEN
Classes: 9, 10, 20, 35, 37, 38, 42
With seniority from Denmark, Finland, Spain, Germany, Sweden, Italy, Portugal, Benelux, Ireland, Greece, France and United Kingdom.
Registration Date: December 4, 1998.
International Registration No. 801082 – BANG & OLUFSEN
Classes: 9, 10, 15, 20, 35, 37, 38, 39, 41, 42
Protected in the following countries: China, Japan, Russia and USA.
Registration Date: October 16, 2002.
The Complainant has used the trademark BANG & OLUFSEN and other trademarks intensively for many years. Through this use, the marks, especially the mark BANG & OLUFSEN, have acquired a high reputation. The Complainant is also the holder of several domain names containing the BANG & OLUFSEN trademark.
Complainant became aware of the disputed domain name some years ago, and has tried to enter into an agreement to have the domain name transferred from the Respondent. However, for many months the Complainant has not been able to get in contact with the Respondent.
The domain name is for the moment directing viewers to the Complainant’s website.
5. Parties’ Contentions
The Complainant states inter alia as follows:
The trademark and house mark BANG & OLUFSEN is used on or in connection with all the Complainant’s products and services. The main web page is “www.bang-olufsen.com”.
The domain name in question is, apart from the sign “&” and the TLD “.com”, identical to the Complainant’s trademark, and the main part, “bang-olufsen” is identical to the main part of the Complainant’s main domain name.
The Respondent is not an authorized dealer of the Complainant’s products and has never been allowed to use the trademarks or domain names belonging to the Complainant.
For the moment the Respondent is directing internet users to the Complainant’s official website, but as the Complainant has no control over the use of the domain name, it can not be sure that this practice will continue. There is always a danger of misuse, detrimental to the Complainant’s reputation.
Complainant can see no justification for the registration and use of the domain name <bang-olufsen.org>, and is of the opinion that one is up to an example of cybersquatting. Both parties, the Complainant and the Respondent, are residents of Denmark, and as BANG & OLUFSEN is one of the best known trademarks in this country, it is unlikely that the Respondent did not know about the mark.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to convince the Panel of its rights and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements is satisfied:
A. the domain name in question is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and
B. the Respondent has no rights or legitimate interests in respect of the domain name, and
C. the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has provided sufficient evidence of its rights to the trademark BANG & OLUFSEN. It has furthermore proved to be the owner of the domain name <bang-olufsen.com> and other domain names containing the trademark.
The contested domain name comprises in its totality the trademark, and the main part of the domain name <bang-olufsen.org> is identical to the main part of the domain name <bang-olufsen.com>. The TLDs and other extensions do not render otherwise identical or confusingly similar marks more different.
Moreover it has been stated in several decisions by prior WIPO UDRP panels that incorporating a trademark in its entirety into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark. See as examples Dell Inc. v. George Dell and Dell Net Solutions, WIPO Case No. D2004-0512, Toyota France, Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. Computer-Brain, WIPO Case No. D2002-0002 and Pfizer, Inc. v. Seocho and Vladimir Snezko, WIPO Case No. D2001-1199.
The Panel thus finds that the domain name in question is identical to the Complainant’s registered trademark.
B. Rights or Legitimate Interests
The Respondent has not filed a response to the Complainant’s contentions and the Panel must therefore base its view on the facts and allegations brought forward by the Complainant.
The Respondent uses, as mentioned, the domain name to direct users to the Complainants website.
According to the Complainant, an agreement was entered between the parties some years ago, to transfer the domain name to the Complainant. However, of technical reasons, the Respondent had to sign a second transfer agreement, but has failed to do so. He has also not replied to the reminders and other letters sent him on behalf of the Complainant.
The Respondent is not an authorized dealer of Complainant’s products and he obviously already has agreed to transfer the domain name.
The Panel finds that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Respondent, a Danish citizen, registered the domain name in 2001. Since Bang & Olufsen a/s is a very well known company in Denmark, it is unlikely that the Respondent did not know of the company and the trademark. Failing a response from the Respondent, and in view of the not contested allegation that the Respondent originally was willing to sign an agreement to transfer the domain name, the Panel finds that the domain name was registered in bad faith. It is hard to believe that a registration in bad faith will not result in use in bad faith, and the Panel therefore finds that the domain name also initially was meant to be used in bad faith although it presently is directing viewers to the Complainant’s website. The Panel finds support for this view in the case Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <bang-olufsen.org> be transferred to the Complainant.
Dated: February 15, 2006