World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Novotex A/S v. Komar Ltd. / Whois privacy services DomainProtect LLC

Case No. D2010-1487

1. The Parties

The Complainant is Novotex A/S, of Ikast, Denmark, represented by Delacour Dania Law Firm of Denmark.

The Respondents are Komar Ltd and DomainProtect LLC, of Saint-Petersburg, Russian Federation.

2. The Domain Name and Registrar

The disputed domain name <green-cotton.com> is registered with Haveaname, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 6, 2010. On September 6, 2010, the Center transmitted by email to Haveaname, LLC, a request for registrar verification in connection with the disputed domain name. On September 14, 2010, Haveaname LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 14, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 15, 2010.

The Center verified that the Complaint together with the amended 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 September 20, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 10, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 11, 2010.

The Center appointed Alexandre Nappey as the sole panelist in this matter on October 14, 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.

4. Factual Background

NOVOTEX A/S (hereafter the Complainant) is a Danish company manufacturing and selling environmentally friendly textiles under the trademark GREEN COTTON since 1986.

The Complainant and its predecessor GREEN COTTON A/S is an international company doing business worldwide directly or through subsidiaries in Germany, Ukraine, Poland and Hong Kong, SAR of The People’s Republic of China.

The GREEN COTTON trademark is registered in Denmark since at least 1995.

The Complainant holds various trademark rights around the world, among which:

- Danish trademark GREEN COTTON registered on December 8, 1995 under n°1995 09414 for products in classes 24 and 25;

- Community Trade Mark figurative trademark GREEN COTTON registered on September 17, 2003 under n°003355344, for products in classes 20, 23, 24 and 25.

Additionally, the Complainant has developed its presence on the Internet prior to the year 2000 under the disputed domain name, which was inadvertently allowed to expire/lapse in April 2010 due to a mistake. A few weeks later, the Respondent registered the domain name. On the date the Complaint was filed, the Respondent was using the domain name as a qualified parking page.

On August 20, 2010, the Complainant sent a cease-and-desist letter to the Respondent to obtain the assignment of the disputed domain name. This letter remained unanswered.

5. Parties’ Contentions

A. Complainant

According to the Complainant, the domain name should be considered as identical or at the very least confusingly similar to the Complainant’s prior trademark GREEN COTTON.

The Respondent has not been commonly known by the disputed domain name.

The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.

It appears that the disputed domain name registered is identical to a trademark used in commerce by the Complainant since 1986, and is used by the Respondent for commercial gain, offering the domain name at a price exceeding the registration cost, and also by attracting Internet users by creating a likelihood of confusion between the Complainant’s trademark and the disputed domain name with a purpose of making sale of sponsored links to Complainant’s competitors, and is infringing Complainant’s trademark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Notwithstanding the default of the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that:

(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate”.

Having consideration to the parties’ contentions, the Policy, Rules, Supplemental Rules and applicable substantive law, the Panel’s findings on each of the above mentioned elements are the following.

A. Identical or Confusingly Similar

The Complainant has established its rights in the trademark GREEN COTTON which pre-date the Respondent’s registration of the domain name.

The domain name <green-cotton.com> is seemingly identical to the Complainant’s trademark.

It is well established that domain suffixes are disregarded for the purpose of this comparison.

The Panel concludes that the domain name is identical to a trademark in which the Complainant has rights.

Complainant has satisfied the first requirement of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

It is submitted that the Respondent has no connection or affiliation with the Complainant, who has not licensed or otherwise authorized the Respondent to use or apply for any domain name incorporating the Complainant’s trademarks.

The Respondent has not alleged any facts or elements to justify prior rights or any legitimate interest in the disputed domain name.

The Respondent does not appear to make any legitimate use of the domain name for noncommercial or fair use activities.

The Panel finds therefore that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent, having been found in default, has not challenged any of the contentions submitted by the Complainant.

Consequently, the Panel finds for the Complainant in terms of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Based on the unchallenged claims of the Complainant, the following factors lead the Panel to infer and conclude that the Respondent registered and used the domain name <green-cotton.com> in bad faith.

The Complainant had been using its trademarks for more than 20 years before the Respondent registered the domain name.

The Complainant appears to have registered the disputed domain name on April 17, 2001, and maintained an active website at this address, until it was inadvertently allowed to expire in April 2010. It would appear that the Respondent opportunistically registered the domain name shortly after the Complainant inadvertently allowed it to expire.

The Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks. The Respondent is clearly trading on the Complainant’s goodwill and reputation in its trademark and business (see Viacom International Inc., and MTV Networks Europe v. Web Master, WIPO Case No. D2005-0321).

The Respondent has engaged in a pattern of registering domain names confusingly similar to the trademarks of others and has previously been instructed by Panels in other UDRP proceedings that such conduct may constitute evidence of bad faith (see for instance Daimler AG v. Whois privacy services, provided by DomainProtect LLC/Designbureau Ltd., Domain Manager WIPO Case No. D2010-1269).

At last, the Panel notes that the Respondent did not reply to the Complainant’s contentions.

All of these factors lead to the conclusion that the Respondent registered and is using the domain name <green-cotton.com> in bad faith under paragraph 4(b) of the Policy. The Panel therefore finds that the Complainant has satisfied the third requirement of paragraph 4(a)(iii) of the Policy.

7. Decision

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 <green-cotton.com> be transferred to the Complainant.

Alexandre Nappey
Sole Panelist
Dated: October 29, 2010

 

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