WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Remy Cointreau Luxembourg S.A. v. Deividas Samulionis, UAB "Sentosa"
Case No. D2016-2232
1. The Parties
The Complainant is Remy Cointreau of Luxembourg, represented by Nameshield, France.
The Respondent is Deividas Samulionis, UAB "Sentosa" of Vilnius, Lithuania.
2. The Domain Name and Registrar
The disputed domain name <spyrosmetaxa.com> is registered with Tucows Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 3, 2016. On November 3, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 9, 2016, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 2, 2016
The Center appointed Peter Wild as the sole panelist in this matter on December 21, 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.
4. Factual Background
The Complainant is the owner of the trademark METAXA which is used and well-known for a Greek brandy and was invented by Spyros Metaxa in 1888. It is distributed worldwide. The trademark is protected internationally, for example under International registration METAXA No. 466654 of February 18, 1982; METAXA No. 514762 of June 29, 1987; or METAXA No. 1147655 of August 6, 2012.
The Complainant is also the owner of domain names including the trademark METAXA, such as <metaxa.com>. On its website "www.metaxa.com", the Complainant makes clear reference to the founder and inventor of the distilled drink under the brand METAXA.
The disputed domain name has been registered on September 8, 2016 by the Respondent. The disputed domain name redirects to the website "www.liutuvartai.lt" which promotes a Greek bar-restaurant.
On September 27, 2016, a cease-and-desist letter has been sent to the Respondent. According to the Complainant, the Respondent did not reply to this cease-and-desist letter.
5. Parties' Contentions
According to the Complainant, the trademark METAXA is well-known. The disputed domain name is confusingly similar, as it only adds the Top-Level Domain ("TLD") ".com" and the first name "spyros" of the eponymous founder of the METAXA brand. The rich history of the brand and its founder are an important part of the Complaint. The Complainant also contends that the Respondent is not known as "Spyros Metaxa" and has no rights into the name METAXA and that registration and use of the disputed domain name are in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name contains the trademark METAXA in its entirety, in which the Complainant has registered rights, but also contains the elements "spyros" and ".com". As to the TLD ".com", it is established practice of earlier UDRP panels that this TLD is not relevant for judging the overall impression. (See Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698).
The element "spyros" on the other hand is part of the second-level domain element and stands prominently at the beginning. In the present disputed domain name, the second element "spyros" is the first name of the person with the last name "Metaxa" who created the product which is sold under the brand METAXA. This creates a logical connection between the two elements and does emphasize the element "metaxa". This Panel consequently comes to the conclusion that the element "spyros" does not change the overall impression and the disputed domain name is therefore confusingly similar to the Complainant's trademark.
In this Panel's view, the first element of the Policy is therefore met.
B. Rights or Legitimate Interests
The Complainant must establish a prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. If the Respondent fails to do so, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
The Respondent is not known under the disputed domain name and claims no connection with or authorization from the Complainant. According to a translation of the text found under the website, to which the disputed domain name resolves, the Respondent makes reference to "the founder of the famous Greek drink METAXA". The Respondent himself therefore states that the disputed domain name refers not to him, but to the founder of the Complainant's brand METAXA.
With the evidence on file, this Panel is satisfied that the second element of the Policy is met.
C. Registered and Used in Bad Faith
The disputed domain name redirects the Internet user to "www.liutuvartai.lt" which appears to be a website for a Greek styled restaurant. On that website, pictures of glasses marked with the brand METAXA can be found. According to a translation of the text found under the website, the Respondent makes reference to "the founder of the famous Greek drink METAXA". It is therefore certain that the Respondent was and is aware of the Complainant's well-known trademark. In this Panel's view this establishes bad faith registration of the disputed domain name.
Using a well-known trademark which refers to a Greek drink will attract Internet users who are interested in Greek beverage products or restaurant and bar services. These are the services which the Respondent appears to offer. The use of the Complainant's trademark in the disputed domain name and the linked website must therefore be seen as the Respondent's intentional attempt to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent's website or location (paragraph 4(b)(iv) of the Policy).
In addition, the Respondent did not respond to the cease-and-desist letter and did not explain nor justify use of the Complainant's trademark in the disputed domain name. Past UDRP panels have held that failure to respond to a cease-and-desist letter may be considered a factor in finding bad faith registration and use of a domain name (see Encyclopaedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party, WIPO Case No. D2000-0330).
This Panel therefore comes to the conclusion that the third element of the Policy is met.
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 name <spyrosmetaxa.com> be transferred to the Complainant.
Date: December 23, 2016