WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB Lindex v. Fizouli Faradjev
Case No. D2007-1851
1. The Parties
The Complainant is AB Lindex, Gothenburg, of Sweden, represented by Advokatfirman Vinge KB, Sweden.
The Respondent is Fizouli Faradjev, Uppsala, Sweden.
2. The Domain Name and Registrar
The disputed domain name <lindex.mobi> is registered with Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2007. On December 14, 2007, the Center transmitted by email to Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name at issue. On December 15, 2007, Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 20, 2007. 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 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 10, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 15, 2008.
The Center appointed P-E H Petter Rindforth as the sole panelist in this matter on January 22, 2008. 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 Administrative Panel shall issue its Decision based on the Complaint, the Amended Complaint, the Policy, the Rules, the Supplemental Rules, and without the benefit of any Response from the Respondent. The case before the Panel was conducted in the English language.
4. Factual Background
The Complainant, founded in Sweden in 1954, is the owner of the trademark LINDEX, registered as a word mark in Sweden for goods in Class 25 since 1968 under No. 123 172 and for goods and services in classes 3, 14, 18, 22, 24, 25, 26, 28, 32 and 35 since 1992 under No. 236 147. Non translated copies of the Certificates of Registration were provided as Annex VA 1 – 2 of the Complaint.
According to Annex VB 1 - 2 (a printout from Complainant’s Annual Report) of the Complaint, the Complainant is a fashion chain with approximately 3,000 employees and 350 stores in Sweden, Norway, Finland, Estonia, Latvia, Lithuania and the Czech Republic. The annual sales for the fiscal year of 2006/2007 was 5,084 million SEK. The Complainant has been listed on the OMX Nordic Exchange Stockholm since 1995 and the value of the trademark LINDEX is approximately 116 million SEK and approximately 37 million SEK for goodwill according to the Annual Report.
The Respondent registered the disputed domain name on December 3, 2006. No detailed information is provided about the Respondent’s activities, apart from what is mentioned below by the Complainant.
5. Parties’ Contentions
The Complainant claims to be the owner of not only the abovementioned Swedish trademark registrations, but also LINDEX registered marks in a number of other countries, such as France, Slovakia, Portugal, Hungary, Italy, Austria, Denmark and Spain. The Complainant is also the holder of several domain name registrations for “lindex”, such as <lindex.se>, <lindex.nu>, <lindex.com>, <lindex.org>, <lindex.biz>, <lindex.eu> and others.
The Complainant states that the disputed domain name is identical to the LINDEX trademark, and that LINDEX is a well-known mark as defined in the Swedish Trademark Act.
The Respondent has no rights or legitimate interests in respect of the domain name, as the Complainant has not licensed or otherwise permitted the Respondent to use or register its trademark or to apply for any domain name incorporating any such mark. There is no relationship between the Complainant and the Respondent.
“Lindex” is not a word in the Swedish or English languages with any meaning, i.e. as a generic dictionary word. It is solely known in Northern Europe as the name of the Complainant.
The Respondent has pointed <lindex.mobi> to a site offering sex toys and other related goods (a printout of the starting page of the site is provided as Annex VB 3 of the Complaint). After receiving a warning letter from the attorneys of the Complainant, the Respondent – without replying to the letter - placed the disputed domain name for sale on a domain name auction site (Annex VC 1 of the Complaint).
Thus, the Complainant concludes that the Respondent registered the disputed domain name in order to attract customers to the site, by way of luring customers seeking the site of the Complainant, as well as in order to seek money from the Complainant or from whoever is willing to pay for <lindex.mobi>.
The Complainant requests the Panel to issue a decision that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:
(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The relevant part of the disputed domain name is “lindex”.
The Complainant has established rights in the LINDEX trademark in Sweden through registration Nos 123 172 LINDEX (word) and 236 147 LINDEX (word).
The Complainant also claims to have trademark registrations for LINDEX in a number of other countries. Although this statement is not supported by any documentation, the registrations are listed with registration numbers in the Complaint and this Panel has no reason to doubt that LINDEX is registered in the name of the Complainant also outside of Sweden.
The Complainant further claims that LINDEX is a well-known trademark, being “one of the leading fashion chains in Northern Europe” (Annex VB 1). The supporting evidence consist only of excerts from the Complainant’s Annual Report, however the Panel, being a Swedish citizen, concludes that LINDEX is at least well-known in Sweden in the field of fashion.
Accordingly, the Panel concludes that the disputed domain name is identical to the Complainant’s trademark.
B. Rights or Legitimate Interests
The Respondent is apparently not an authorized agent or licensee of the Complainant and has no other permission from the Complainant to apply for any domain name incorporating the trademark LINDEX.
By not submitting a Response, the Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interest in the domain name.
As shown by Annexes VB 3 and VC 1 of the Complaint, the Respondent has used the domain name for i) a website selling so called “sex toys” online, and later on ii) advertised <lindex.mobi> on a domain name auction site with an opening bid of one million euros. As established in a number of UDRP cases under similar circumstances, such use cannot constitute a bona fide use of the domain name pursuant to paragraph 4(c)(i) of the Policy, see Chanel, Inc. v. Cologne Zone, WIPO Case No. D2000-1809, “Bona fide use does not exist when the intended use is a deliberate infringement of another’s rights”.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant is a Swedish company, founded over 50 years ago, and presumably well-known to the general public in Sweden. The Respondent is domiciled in Sweden, and must have been aware of the Complainant’s trademark rights when registering the domain name.
Paragraph 4b(i) of the Policy states that circumstances indicating that Respondent has registered the domain name primarily for the purpose of selling or renting it to Complainant for a monetary consideration in excess of Respondent’s out-of-pocket expenses directly related to the domain name, shall be evidence of registration and use of a domain name in bad faith. The Panel finds that these circumstances are present here, as the Respondent has offered <lindex.mobi> for sale at a domain name auction site, with the abovementioned opening bid of 1,000,000 euros – clearly in excess of Respondent’s out-of-pocket expenses directly related to the domain name.
The Respondent has also used <lindex.mobi> in connection with a site offering sex toys. Previous Panels have held that the registration of a domain name incorporating a well-known trademark and use of that domain name for a pornographic website amounts to registration and use in bad faith, see National Football League Properties, Inc. and Chargers Football Company v. One Sex Entertainment Co., a/k/a chargergirls.net, WIPO Case No. D2000-0118 (Holding that Respondent’s use of the domain name in dispute to direct Internet users to a pornographic website, thereby using the domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion regarding whether Complainant was the source, sponsor, affiliate or endorser of its website, was use in bad faith. “Although Internet users might soon discover the unlikelihood of a business relationship between Complainant and Respondent, Respondent would have gained website traffic from the establishment of the link via the…domain name”). It may be debatable whether the sale and promotion of sex toys is a pornographic business or not, but the detrimental effect to the trademark owner / Complainant is likely to be equivalent to the said situation.
This Panel concludes that the disputed domain name was both registered and used in bad faith, and that the Complainant has succeeded in proving the three elements within paragraph 4(a) of the Policy.
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, <lindex.mobi> be transferred to the Complainant.
P-E H Petter Rindforth
Dated: February 5, 2008