WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dragsbæk A/S; Blumefood I/S v. Peter Olsen; Paula Nickison, One World
Case No. D2016-0156
1. The Parties
The Complainants are Dragsbæk A/S of Thisted, Denmark, and Blumefood I/S of Randers, Denmark, represented by Softgarden AS, Norway.
The Respondents are Peter Olsen of the Netherlands and Paula Nickison, One World of Bamenda, Cameroon.
2. The Domain Names and Registrars
The disputed domain name <blume-food.com> is registered with Tucows Inc.
The disputed domain name <blumefood.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
Collectively, the concerned registrars with be referred to as "the Registrars".
3. Procedural History
The Complaint was filed by the Complainant Dragsbæk A/S with the WIPO Arbitration and Mediation Center (the "Center") on January 26, 2016. On January 26, 2016, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On January 27 and 28, 2016, the Registrars transmitted by email to the Center their verification responses confirming that the Respondents are listed as the registrants 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 and 4, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on February 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 23, 2016. One of the Respondents submitted a brief, non-substantive email communication to the Center on February 22, 2016. The Respondents did not submit any substantive response by the Response due date. Accordingly, the Center notified the Respondents' default on February 24, 2016. On that date the same Respondent submitted a further brief email with the Center stating that "all the accusations are false".
The Center appointed Jonas Gulliksson as the sole panelist in this matter on March 3, 2016. 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.
On March 18, 2016 a Procedural Order was issued which provided the Complainant Dragsbæk A/S the opportunity to, by March 23, 2016 at the latest, submit additional arguments and evidence regarding the first requirement of paragraph 4(a) of the Policy.
On March 22, 2016 the Complainant Dragsbæk A/S submitted additional information in reply to the Procedural Order.
On April 7, 2016 a second Procedural Order was issued to the Complainant Dragsbæk A/S requesting it to provide a document authorizing it to act in this UDRP dispute on behalf of the trademark proprietor, Blume food I/S, and a request to add the trademark proprietor, Blume food I/S, as a Complainant to the dispute.
On April 11, 2016 the Panel received the requested document and request.
Against this background the Panel finds it appropriate to allow multiple complainants in this case and therefore considers both Dragsbaek A/S and Blume food I/S as Complainants.1
4. Factual Background
The disputed domain name <blume-food.com> was registered August 5, 2015.
The disputed domain name <blumefood.com> was registered March 26, 2015.
As at the date of this decision <blume-food.com> resolves to a webstore under the name "Blume Food", which claims to sell various food and beverage products.
As at the date of this decision <blumefood.com> is inactive. The Complainants assert that <blumefood.com> formerly resolved to the same webstore, which, for reasons discussed infra, has been removed by the concerned website provider.
The Community trademark registration for BLUME FOOD was filed July 10, 2015 and registered November 11, 2015 in classes 29, 32, and 35. The Complainant Blume Food I/S is the owner of this registration. The Complainant states that its company and brand have been commercially active since the 1920s for the production and sale of ingredients such as margarine and various oils.
5. Parties' Contentions
The Complainants mainly allege the following.
Both disputed domain names are identical to the brand name and trademark BLUME FOOD. Blumefood I/S is the registered owner of the BLUME FOOD trademark and Dragsbaek A/S has the operational responsibility for the brand. Both companies are part of the same corporate group (and are both ultimately owned by Orkla ASA).
The disputed domain names have been registered and used for conducting fraud in the form of webstores from which purchasers, believing they are dealing with the Complainants, pay money for goods which are then never delivered. The money is paid directly to the Respondents.
The Complainants have alleged that the disputed domain name <blumefood.com> was "shut down" by the website provider Clearpath Technology in 2015, in light of this apparent fraud.
The Respondents did not reply to the Complainants' contentions within the time limit. However, two emails, presumably from the Respondents, have been submitted which mainly state that "all allegations are false" and "[m]any people are trying to sabotage our domain. We wish to sell the domain".
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainants to prove all three of the following elements:
(i) that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondents have no rights or legitimate interests in respect of the disputed domain names; and
(iii) that the disputed domain names have been registered and are being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the Complainant Blume Food I/S has a right to the trademark BLUME FOOD as required by the Policy.
The disputed domain names are confusingly similar to the trademark BLUME FOOD, as both contain that mark in its entirety.
Consequently, the Panel finds the first requirement of paragraph 4(a) of the Policy fulfilled.
B. Rights or Legitimate Interests
The Complainants must make at least a prima facie case that the Respondents lacks rights or legitimate interests in the disputed domain names, after which the burden of production shifts to the Respondents to come forward with appropriate evidence or argumentation to rebut this case.
Regarding the fraudulent use of <blume-food.com>, the Complainants have submitted as evidence an email sent from this domain received by one of the Complainants' customers, in which the sender claims to represent the Complainant Blume Food I/S and solicits an offer for sunflower oil.
Regarding the fraudulent use of <blumefood.com>, the Complainants have submitted as evidence an email correspondence from one of the Complainants' customers appearing to state that "Peter Olsen" (the registrant of <blumefood.com>) had defrauded it out of the deposit price for a shipment of beer which was never delivered.
In light of the above, the Panel finds that the Complainants have established a prima facie case that the Respondents lack rights or legitimate interests in the disputed domain names. The Respondents have not rebutted this case. The Panel therefore finds the second requirement of paragraph 4(a) of the Policy fulfilled.
C. Registered and Used in Bad Faith
The Complainants has provided convincing arguments and evidence that the disputed domain names were registered and used for a fraudulent webstore in the Complainants' name purporting to sell products which were never delivered to purchasers.
The Panel further notes that the very fact of the registration of two almost identical domain names incorporating the Complainants' brand leads to the clear conclusion that such registrations were undertaken with the Respondents' full knowledge of the Complainants' trademark rights.
The Panel therefore finds that the third requirement of paragraph 4(a) of the Policy is fulfilled.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <blume-food.com> and <blumefood.com> be transferred to the Complainants.
Date: April 13, 2016
1 In this regard the Panel also finds, in the circumstances of this case, that it is acceptable to allow a complaint against multiple respondents, and accordingly will move forward to a decision as to both disputed domain names.