The Complainant is Investment AB Kinnevik of Stockholm, Sweden, represented by Domain and Intellectual Property Consultants DIPCON AB, Sweden.
The Respondent is Top Business Names of West Bay, Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
The disputed domain name <kinnevik.com> is registered with Rebel.com Corp.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2010. On April 13, 2010, the Center transmitted by email to Rebel.com Corp. a request for registrar verification in connection with the disputed domain name. On April 13, 2010, Rebel.com Corp. transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 April 14, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 4, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 5, 2010.
The Center appointed Knud Wallberg as the sole panelist in this matter on May 20, 2010. 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 Complainant claims to have unregistered rights in the trademark KINNEVIK, primarily in Sweden but also on several other markets where KINNEVIK is used.
The Complainant was founded in Sweden in 1936 and is an investment company. The Complainant started using the mark KINNEVIK in 1985 and uses “Kinnevik” when referring to itself. The Complainant owns several domain names consisting of “kinnevik” and the relevant gTLD or ccTLD denomination and in the press, the Complainant is often referred to as “Kinnevik”. Further, the name Kinnevik is recognized by Nationalencyklopedin, a well-known encyclopaedia in Sweden, as the name of the Complainant.
The disputed domain name was registered on February 11, 2006. The disputed domain name was earlier registered and owned by the Complainant, but due to an error was not renewed.
When comparing a trademark with a domain name, the top level domain must be disregarded, and the disputed domain name <kinnevik.com> must therefore be considered to be identical to the trademark KINNEVIK.
The Respondent does not have any rights in the trademark KINNEVIK, nor is the Respondent a licensee of the Complainant. The Complainant has not in any way given the Respondent permission to register the trademark KINNEVIK as a domain name.
Controls made on the website at “www.kinnevik.com” shows that the name Kinnevik cannot be found as a personal name or as a name for any service or product range provided by the Respondent and there is nothing to suggest that the Respondent has been commonly known by the disputed domain name.
The Respondent's use of the disputed domain name shows that it attempts to attract Internet users to its website at the disputed domain name to commercially gain by creating a likelihood of confusion with the Complainant's mark. This use of the domain name does not constitute the use of the domain name in connection with a bona fide offering of goods or services.
Further, before any notice to the Respondent of the dispute, there was no evidence of the Respondent's 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.
The Respondent registered the disputed domain name well after the Complainant's first use of KINNEVIK.
The Respondent has used the disputed domain name for advertised links where the Complainant's trademark was found, including “MTG”, “Tele 2”, “Viasat” and “Korsnäs” as well as the names “Christina Stenbeck”, “Mia Brunell”, “Hugo Stenbeck”, “Jan Stenbeck” and “Pelle Törnberg” who all are or have been members of the board of the Complainant or the subsidiaries. Further, links to competing businesses have also been posted on the website.
It appears that the links are of the pay-per-click type which renders the holder revenue each time a visitor navigates the links. By this use, the Respondent attempts to attract Internet users to its website at the disputed domain name for commercial gain by creating a likelihood of confusion with the Complainant's mark and this shows that the domain name was registered, and is being used, in bad faith.
The Complainant further claims that the Respondent is in fact the same party as the immediate past holder of the disputed domain name, BWI Domains, who has been involved as a respondent in several cases before the Center in which trademarks were targeted and the corresponding domain names were registered in order to prevent the owners of the trademarks from reflecting the marks in corresponding domain names. The Complainant therefore states that the Respondent has engaged in a pattern of such conduct. Should the Panel find that the Respondent is not the same party as BWI Domains, the Respondent has also been involved as a respondent in some cases of registering identical or confusingly similar trademarks as corresponding domain names. This in itself constitutes bad faith.
Further, it appears that the party behind the registration of the disputed domain name has taken measures to complicate legal actions and limit the available remedies for right holders by changing its name or transferring the disputed domain name when first approached by the Complainant and due to the fact that neither “BWI Domains” nor “Top Business Names” seem to be registered businesses on the Cayman Islands. This indicates that fake information for the domain name owner is being used, and it adds to the fact that the domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 15(a) of the Rules the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) that the Respondent has no rights or legitimate interests in respects of the disputed domain name; and
(3) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
The Complainant claims that it has established trademark rights for KINNEVIK through use at least in Sweden, prior to the registration of the disputed domain name. Having considered the information put forward by the Complainant, the Panel is satisfied that this is indeed the case.
UDRP panels have in various cases concluded that trademark rights can be established by use and that establishment of unregistered trademark rights is in compliance with the UDRP, see, inter alia, Kromann Reumert v. kroman reumert, WIPO Case No. D2009-0050 with references to additional decisions.
The disputed domain name contains the Complainant's distinctive trademark KINNEVIK with the addition of the “.com” designation. For the purpose of these proceedings the domain name is found to be confusingly similar to the Complainant's trademark.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled.
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the mark.
The Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this by way of a formal Response or otherwise. Given the coined nature of the word “kinnevik” and the way that the Respondent has used and is still using the disputed domain name, namely for a website that contains only links to other websites including links to competitors of the Complainant the Respondent cannot credibly claim that the domain name is intended to be used for any legitimate interests. The Panel further refers to its below findings in relation to the actual use made of the domain name.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii), cf. 4(c) of the Policy are also fulfilled.
Paragraph 4(a)(iii) of the Policy further provides that the Complainant must prove the Respondent's registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy sets out, by way of example, the kind of evidence that may be put forward.
Given the extent of use of the Complainant's trademark and the distinctive nature of the mark in relation to investments and related services, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant's mark.
This is underlined by the fact that the disputed domain name, at the time of the filing of the Complaint, was used for a website that contained links to other websites including links related to competitors of the Complainant. Although there is nothing per se illegitimate in domain name parking, if a domain name is chosen by a registrant to capitalise on the reputation of another's mark, in the hope and expectation that Internet users searching for information related to the mark would be directed to the respondent's site, such registration and use will usually be in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. The Panel therefore finds that the Respondent by its registration and use of the domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name with the purpose of attracting Internet users to the website for commercial gain.
Furthermore, while the Panel is reluctant to find that the Complainant has established that the Respondent has engaged in a pattern of cybersquatting, the Panel finds that Respondent by using a name that does not exist has given incorrect contact details in breach of the registration agreement, which constitutes further evidence of bad faith, see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and more recently Mrs. Eva Padberg v. Eurobox Ltd., WIPO Case No. D2007-1886.
Considering all the facts and evidence, the Panel therefore finds that the conditions of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
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 <kinnevik.com> be transferred to the Complainant.
Dated: June 2, 2010