WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Candyking Holding AB v. Joan Deer
Case No. DCO2014-0004
1. The Parties
The Complainant is Candyking Holding AB of Solna, Sweden, represented by Groth & Co KB, Sweden.
The Respondent is Joan Deer of Stockholm, Sweden.
2. The Domain Name and Registrar
The disputed domain name <karamellkungen.co> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 20, 2014. On March 20, 2014, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On March 21, 2014, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 28, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 17, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 22, 2014.
The Center appointed Jonas Gulliksson as the sole panelist in this matter on May 5, 2014. 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 was founded in 1984 and is a leading supplier of pick & mix candy in the Nordic region, the United Kingdom of Great Britain and Northern Ireland and Ireland, and does business in Poland, the Czech Republic, Slovakia and Hungary. Furthermore, the Complainant is the holder of the trademarks KARAMELLKUNGEN, CANDYKING, PARROTS, PREMIYUM and GODISPRINSEN.
The disputed domain name was registered by the Respondent on October 24, 2013.
5. Parties' Contentions
According to the concerned Registrar's WhoIs database, the Respondent is Joan Deer. The Respondent's contact information is sodermalmsv 51, SE-102 32 Stockholm. There is no person in Sweden with the name "Joan Deer" or a road in Stockholm with the name "Södermalmsvägen". Considering these facts, the Complainant has reasons to believe that the WhoIs information provided by the Respondent is false and fabricated.
Identical or confusingly similar
The Complainant is the holder of the following relevant trademarks:
- KARAMELLKUNGEN, Swedish word trademark, registered on October 18, 1996.
- KARAMELLKUNGEN, Swedish word trademark, registered on July 26, 2002.
The Complainant's company name was earlier "Karamellkungen AB", but the company name has been changed to the Complainant's current name.
The disputed domain name incorporates the Complainant's registered trademark KARAMELLKUNGEN in its entirety. If the country code Top-Level Domain (ccTLD) "co" is excluded, the disputed domain name is identical to the Complainant's trademarks in which the Complainant has rights.
Rights or legitimate interest
The Respondent has no rights or legitimate interests in respect of the trademark KARAMELLKUNGEN. To the best of the Complainant's knowledge, the Respondent does not own any trademark, service mark, company name, product or service with a name similar to the one in question. Furthermore, the Respondent is not commonly known by the disputed domain name. The Complainant has not directly nor indirectly licensed or otherwise consented to the Respondent's use of the trademark KARALMELLKUNGEN in connection with the disputed domain name.
The Respondent is using the disputed domain name for the purpose of selling a variety of drugs and substances to the public in Sweden. Since the Respondent's website is written in Swedish, it is aimed towards the Swedish market. The Complainant has noted that one of the substances offered for sale is cannabis, a drug which is illegal in Sweden. According to the information found on the Respondent's website, purchase orders are sent via an encrypted e-mail service from Countermail and payments are made in BitCoins.
The Respondent is clearly using the disputed domain name in a very anonymous manner in order to avoid being held accountable for selling cannabis and other substances.
Providing false WhoIs details and using the Complainant's registered trademarks as a domain name to sell prohibited substances can hardly be circumstances that establish a right or a legitimate interest to the disputed domain name.
Having the above in mind, all circumstances in the case clearly indicate that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Registered and used in bad faith
The Complainant contacted the Respondent via e-mail on January 14, 2014 and informed the Respondent that selling illegal drugs and substances in connection with the Complainant's trademark KARAMELLKUNGEN could be damaging both the Complainant's trademark and business. Consequently, the Complainant requested the Respondent to cease its use of the disputed domain name and agree to transfer the disputed domain name to the Complainant. The Respondent did not reply to the Complainant's e-mail.
The Complainant believes that the Respondent's registration and use of the disputed domain name were made with the Complainant's trademark and business in mind. The registration of the disputed domain name was made in order to attract Swedish Internet users to the Respondent's own website.
Furthermore, the facts that the Complainant's Swedish trademark registration predates the registration date of the disputed domain name and that the Respondent is targeting the Swedish public are strong indications that the Respondent must have been aware of the Complainant's mark and business when registering and using the disputed domain name. Thus, it is the Complainant's opinion that the Respondent was well aware of the Complainant's trademark KARAMELLKUNGEN when registering and using the disputed domain name.
The Respondent's registration and use of the disputed domain name could be detrimental to the Complainant's trademark KARAMELLKUNGEN. The Respondent has intentionally attempted to attract Internet users to the disputed domain name for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website of a product on the Respondent's website. The Complainant maintains that the disputed domain name was registered and used in bad faith by the Respondent.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove all three of the following elements to be entitled to the relief sought: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant is the holder of two registered Swedish word trademarks involving KARAMELLKUNGEN.
The disputed domain name consists of the word KARAMELLKUNGEN, with the addition of the ccTLD ".co". According to well established consensus among UDRP panels, the ccTLD is generally not distinguishing.
Consequently, the Panel finds the disputed domain name to be identical to the trademarks in which the Complainant has rights. The first element of the paragraph 4(a) of the Policy is thus fulfilled.
B. Rights or Legitimate Interests
In cases when a respondent fails to present a response, the Complainant is still required to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview, 2.0"), paragraph 2.1, and The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064 and Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465. Further, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.
The Complainant has asserted that no permission has been granted to the Respondent to register the disputed domain name. Moreover, the Complainant has stated that the Respondent has no rights of its own or legitimate interests to the disputed domain name which entirely incorporates the Complainant's trademarks.
Having considered the submissions of the Complainant, and the absence of a response from the Respondent, the Panel finds that the Respondent is not connected with the Complainant or authorized to use the Complainant's KARAMELLKUNGEN trademark in the disputed domain name. Nor does the Panel find any indications that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, or has rights or legitimate interests in any other way in the disputed domain name.
In light of what is stated above, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not proved otherwise. Therefore, the Panel finds that the second element of the Policy is fulfilled.
C. Registered and Used in Bad Faith
The disputed domain name was registered many years after the registration date of both of the Complainant's KARAMELLKUNGEN trademarks.
The disputed domain name is identical with the Complainant's trademark KARAMELLKUNGEN. It is not probable that the Respondent has selected the disputed domain without knowledge of the Complainant's trademark rights and business. Furthermore, the disputed domain name resolves to a website written in Swedish that offers for sale cannabis among other things. Therefore, there is a high probability that the website is aimed to the public in Sweden. Cannabis is illegal to use in Sweden, but with the exception that legal drugs with illegal substances, such as cannabis, can be purchased as medicine from licensed drug stores with a doctor's prescription. There is no indication that the website has permission to sell prescription drugs on the Internet. The Panel finds that the Respondent has intentionally attempted to attract Internet users to the website at the disputed domain name for commercial gain by creating a likelihood of confusion with the Complainant's KARAMELLKUNGEN trademarks as to the source or endorsement of the Respondent's website.
Having regarded these facts, the Panel finds that the disputed domain name has been registered and used in bad faith.
The third and final element 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 name <karamellkungen.co> be transferred to the Complainant.
Date: May 19, 2014