WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
C More Entertainment AB v. Henrik Brännmark
Case No. DNU2012-0002
1. The Parties
The Complainant is C More Entertainment AB of Stockholm, Sweden, represented by Fenix Legal KB, Sweden.
The Respondent is Henrik Brännmark of Umeå, Sweden.
2. The Domain Name and Registrar
The disputed domain name <csports.nu> is registered with .NU Domain Ltd.
3. Procedural History
The Complaint was filed in Swedish with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2012. On May 7, 2012, the Center transmitted by email to .NU Domain Ltd. a request for registrar verification in connection with the disputed domain name. On May 14, 2012, .NU Domain Ltd. 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”).
On May 24, 2012, the Center informed the parties that the language of the registration agreement for the disputed domain name is English, and invited the Complainant to either (i) provide evidence of an agreement between the parties that the proceedings should be conducted in Swedish, or (ii) to submit the Complaint translated into Swedish or (iii) to submit a request for Swedish to be the language of the proceedings. The Complainant submitted a request that Swedish be the language of the proceedings on May 25, 2012 by referring to the Complainant’s previously submitted request (including arguments and supporting material) in its Complaint. The Respondent did not file any language submission or objection to the Complainant's request that Swedish be the language of proceedings.
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 June 7, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 27, 2012. On June 7, 2012 and July 3, 2012, the Center received email communications from Respondent, which are described below. However, the Respondent did not submit any formal response. Accordingly, the Center informed the parties about the commencement of the panel appointment process on July 2, 2012.
The Center appointed Jonas Gulliksson as the sole panelist in this matter on July 10, 2012. 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
The Complainant is a Swedish company providing cable television services. The Complainant uses the trademark C SPORTS for a web based television service, offering live sports, on the web page “www.csports.se”.
The Complainant is the owner of the Swedish trademark registration number 412051 C SPORTS (device), registered on July 23, 2010, for goods in class 16 and services in classes 38 and 41.
The disputed domain name was registered on March 8, 2012.
5. Parties’ Contentions
The disputed domain name is confusingly similar to the registered trademark of the Complainant. The disputed domain name consists of the Complainant’s registered trademark without the space between “c” and “sports”, the removal of the space being for technical reasons and not sufficient to distinguish the disputed domain name from the Complainant’s trademark.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not an authorized agent or distributor of the Complainant’s services. There is no evidence to suggest that the Respondent is commonly known under the disputed domain name <csports.nu>. The disputed domain name is used to display pornography and sponsored links for the purpose of commercial gain and with the purpose to subsequently sell the domain name to the Complainant, which is evident from email correspondence from the Respondent to the Complainant.
The Complainant’s trademark is well-known. Both the Complainant and the Respondent are based in Sweden. It is unlikely that The Respondent would have registered the disputed domain name without knowledge of the Complainant’s trademark. The connection of the domain name to a pornographic website constitutes evidence of the Respondent's intention of pressing the Complainant into buying the domain name.
The Respondent has a history of registering other’s trademarks as domain names.
The Respondent sent email communications in English where it stated: “Can you please stop sending me this? I have nothing to do with csports or anything. Find this guy and stop sending me more” and “[…] Cant you understand that I have nothing to do with this and stop sending me this emails? "and thats my answer LONG TIME AGO AND I DONT UNDERSTAND HOW YOU GOT MY MAIL".
The Respondent did not formally reply to the Complainant’s contentions.
6. Discussion and Findings
A. Language of Proceedings
Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
While the Complaint has been submitted in Swedish, the language of the Registration Agreement is English.
The vast majority of UDRP panels agree that the overall circumstances surrounding the case have to be taken into account to appraise a request for the proceedings to be held in a language other than the one of the Registration Agreement. As pointed out: “Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceedings. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case. ”(Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).
In the present case, the two only email communications from the Respondent in the case file are in English and the Complainant’s reply (in English) to the Center’s language of proceedings notification leaves no doubt, in the Panel’s opinion, that the Complainant’s command of the English language is good.
Consequently, and in light of the aforementioned, the Panel decides that the present decision shall be drafted in English.
B. Substantive Elements of the Policy
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed 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 disputed domain name; and
(iii) 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 three elements are present lies with the Complainant.
i. Identical or Confusingly Similar
The design element of the registered mark is not relevant to the decision of confusing similarity (See Hero v. The Herioc Sandwich, WIPO Case No. D2008-0779). The Panel finds the verbal element C SPORTS to be the prominent feature of the registered trade mark.
The disputed domain name contains in its entirety the verbal element of the registered trademark of the Complainant. The removal of the space between “c” and “sports” does not serve to sufficiently distinguish the disputed domain name from the trademark of the Complainant. In line with well establish consensus, (See eg. Axel Springer Verlag AG v. Andy Fritsche, WIPO Case No. D2000-1335 and Just Jeans Group Limited v. Domain Trade, WIPO Case No. D2000-1821), the Panel finds the disputed domain name confusingly similar to the verbal element of the registered trademark C SPORTS, held by the Complainant.
ii. Rights or Legitimate Interests
The Complainant has stated that there are no business relations between the Complainant and the Respondents that would give the Respondents rights to use the C SPORTS trademark in the disputed domain name. The Complainant has submitted printouts from the website linked to the disputed domain name as well as printouts from its own website. The printouts submitted prove that on the website linked to the disputed domain name the Respondent is inter alia presenting sponsored links and pornographic content as well as the Complainant’s trademark C SPORTS. The Panel finds this to be an indication that the Respondents’ use of the disputed domain name is not a bona fide offering of goods or services.
The Panel finds, based on the evidence provided on the record, that the Respondent is not commonly known by the disputed domain name. Further, there are no indications that the Respondents is making a legitimate noncommercial or fair use of the disputed domain name.
In the light of what is stated above, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name. Therefore, the Panel finds that the second element of the Policy is fulfilled.
iii. Registered and Used in Bad Faith
The print-outs from the web site at the disputed domain name show that the Respondent has used the domain for not only pornography and sponsored links, but also sports links. The Panel finds that this proves that the Respondent’s registration and use of 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 mark as to inter alia the source of its website.
Therefore, this Panel finds it established that the disputed domain name indeed was registered and is used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the the Panel orders that the disputed domain name <csports.nu> be transferred to the Complainant.
Dated: July 24, 2012