WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ALDI GmbH & Co. KG v. (1) ALDIMARKET.COM Privacy Protect.org and (2) Rampe Purda
Case No. D2010-2114
1. The Parties
The Complainant is ALDI GmbH & Co. KG of Mülheim, Germany, represented by Rechtsanwälte Schmidt, von der Osten & Huber, Germany.
The First Respondent is ALDIMARKET.COM Privacy--Protect.org of Shanghai, the People’s Republic of China. The Second Respondent is Rampe Purda of Hailuoto, Finland.
2. The Domain Name and Registrar
The disputed domain name <aldimarket.com> (the “Domain Name”) is registered with Hebei Guoji Maoyi (Shanghai) Ltd aka Hebei International Trading (Shanghai) Co., Ltd. dba HebeiDomains.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2010. On December 8, 2010, the Center transmitted by email to Hebei Guoji Maoyi (Shanghai) Ltd aka Hebei International Trading (Shanghai) Co., Ltd. dba HebeiDomains.com a request for registrar verification in connection with the Domain Name. On December 13, 2010, Hebei Guoji Maoyi (Shanghai) Ltd aka Hebei International Trading (Shanghai) Co., Ltd. dba HebeiDomains.com. transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 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 December 15, 2010. On December 14, 2010, the Center transmitted an email to the parties in both English and Finnish regarding the language of the proceeding. On December 15, 2010, the Complainant submitted a request that English be the language of the proceeding. The Respondents did not comment on the language of the proceeding by the specified due date.
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 Respondents of the Complaint, and the proceedings commenced on December 21, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 10, 2011. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on January 11, 2011.
The Center appointed Steven A. Maier as the sole panelist in this matter on January 21, 2011. 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 requested that the language of these proceedings should be English, notwithstanding the fact that the language of the registration agreement is Finnish. The Panel refers to previous UDRP decisions to which the Respondents were a party, notably The RueDuCommerce Company v. Rampe Purda/Privacy--Protect.org, WIPO Case No. D2010-1632. This Panel concurs with the opinions articulated in that decision, and, accordingly decides that the language of these proceedings should, as requested by the Complainant, be English.
The Complainant refers throughout the Complaint to the Respondent (singular). In view of the confusion as to the identity of the Respondent, the Panel will treat both the First and Second Respondent as Respondents in the proceedings and will deem the Complainant’s submissions to refer to both.
4. Factual Background
The Complainant is a major international grocery retailer. It is the proprietor of numerous trade mark registrations for or including the mark ALDI going back to 1981.
The Domain Name was registered on June 16, 2010.
5. Parties’ Contentions
The Complainant states that it is an international leader in grocery retailing with over 8,000 stores worldwide.
The Complainant has been using the business name and trade mark ALDI since 1946.
The Complainant is the owner of numerous German, Community and other international trade mark registrations which comprise or include the mark ALDI (e.g. Community Trade Mark number 2071728 for ALDI registered on April 14, 2005 in various classes) . The registrations cover groceries and numerous other classes of products and services.
The Complainant uses the domain name <aldi.com> for its Internet presence.
The Domain Name is highly similar to the Complainant’s mark ALDI, the only material difference being the addition of the term “market”, which is descriptive of the Complainant’s services.
The Domain Name invokes the Complainant’s mark and is likely to lead Internet users to conclude that it relates to the Complainant’s mark. Such users will therefore be likely to infer a connection with the Complainant.
The Respondents have no rights or legitimate interests with regard to the Domain Name. The mark ALDI was created by the Complainant and the Respondents have no interest in that name. The Respondents’ name does not incorporate the Domain Name. The Respondents are using the Domain Name to resolve to websites offering sponsored links to other websites, unconnected with the Complainant, that offer various goods and services. The Respondents are deriving pay-per-click revenue from these links on the basis of the Complainant’s reputation. This cannot constitute legitimate use.
The Domain Name was registered and is being used in bad faith. The Complainant has significant reputation in the mark ALDI and market research shows overwhelming evidence of brand recognition. The Complainant also uses domain names such as <aldi.com> and <aldi.org>. It is inconceivable that the Respondents would not have had actual knowledge of the Complainant’s mark.
The Respondents (described as Rampe Purde/Privacy--Protect.org) were the subject of at least nine WIPO UDRP cases in 2010 involving well-known trade marks. In all cases a transfer was ordered. It is to be inferred that the Respondents are in the habit of “grabbing” well-known names in bad faith order to attract Internet users to a website or other online location by creating a likelihood of confusion with the mark in question.
The Complainant seeks a transfer of the Domain Name.
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to succeed in its complaint, the Complainant is required to prove that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) that the Respondents have 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.
The Panel observes that, although the Respondents have failed to file a Response, it is still for the Complainant to prove its case. Further, while the factual assertions made by the Complainant may be uncontradicted by the Respondents, the Panel must nevertheless examine the circumstances that are apparent from the Complaint itself in arriving at its conclusions.
A. Identical or Confusingly Similar
The Panel finds that the Domain Name is confusingly similar to the Complainant’s mark ALDI. Ignoring the formal suffix, the Domain Name comprises the Complainant’s mark ALDI with the addition of the term ”market” which is generic and descriptive of the Complainant’s services and does not therefore serve to distinguish the Domain Name from the Complainant’s mark. On the contrary, it suggests a connection with that mark. Furthermore, there is no evidence that the Domain Name has any meaning or significance independent of the Complainant’s mark.
B. Rights or Legitimate Interests
The Panel finds that the Respondents have no rights or legitimate interest in respect of the Domain Name. Other than by its use of the Domain Name itself for the purpose of a ”parking page”, there is no evidence that the Respondents have ever traded under the Domain Name or a name similar to it or that they have rights in any such names. Nor is there any evidence that the Complainant has ever licensed or authorised the Respondents to use its mark ALDI or the Domain Name.
C. Registered and Used in Bad Faith
The Panel accepts the Complainant’s evidence that the Respondents are using the Domain Name to resolve to a website unconnected with the Complainant from which they derive click-through or other revenue. The Respondents have offered no explanation for their registration and use of the Domain Names. The Panel infers from the fame of the Complainant’s mark and the Respondents’ choice of the Domain Name for a ”parking page” that the Respondents were more likely than not to have been aware of the Complainant’s mark. In the circumstances, the Panel finds that the Domain Name has been registered and used in bad faith, namely, that by using the Domain Name, the Respondents have intentionally attempted to attract, for commercial gain, Internet users to the Respondents’ web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of that web site or location or of a product or service on that web site or location.
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 <aldimarket.com> be transferred to the Complainant.
Steven A. Maier
Dated: February 1, 2011