|Kläger||Veuve Clicquot Ponsardin, Maison Fondée en 1772|
|Beklagter||The Polygenix Group Co.|
|Entscheider||Barker, Sir Ian|
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Veuve Clicquot Ponsardin, Maison Fonde en 1772 v. The Polygenix Group Co.
Case No. D2000-0163
1. The Parties
The Complainant is Veuve Clicquot Ponsardin, Maison Fonde en 1772, a French corporation with a postal address of 12 Rue de Temple, 51100 Reims, France.
The Respondent is The Polygenix Group Co., with a postal address of PO Box 234, Ferrari Offices, Egmont Street, Kingston St. Vincent, Canada. No street address is known for the Respondent.
2. The Domain Name and Registrar
The domain name at issue is "VEUVECLICQUOT.ORG". The domain name is registered with Network Solutions Inc., 505 Huntmar Park Drive, Herndon, Virginia 20170, United States of America ("NSI").
3. Procedural History
The Complaint submitted by Veuve Clicquot Ponsardin, Maison Fonde en 1772 was received on March 15, 2000, (electronic version) and March 16, 2000, (hard copy) by the World Intellectual Property Organization Arbitration and Mediation Center ("WIPO Center").
On or about March 20, 2000, a request for Registrar verification was transmitted by the WIPO Center to NSI, requesting it to:
Confirm that a copy of the Complaint had been sent to it by the Complainant as required by the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("Supplemental Rules"), paragraph 4(b).
Confirm that the domain name at issue is registered with NSI.
Confirm that the person identified as the Respondent is the current registrant of the domain name.
Provide full contact details, i.e., postal address(es), telephone number(s), facsimile number(s), email address(es), available in the Registrars WHOIS database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact for the domain name.
Confirm that the Uniform Domain Name Dispute Resolution Policy was in effect.
Indicate the current status of the domain name.
By email dated March 21, 2000, NSI advised WIPO Center as follows:
NSI had received a copy of the Complaint from the Complainant.
NSI is the Registrar of the domain name registration "VEUVECLICQUOT.ORG".
The Polygenix Group Co. is shown as the "current registrant" of the domain name "VEUVECLICQUOT.ORG". The registrant is identified by a postal address: PO Box 234, Ferrari Offices, Egmont Street, Kingstown St. Vincent, Canada and an email address of "email@example.com".
The administrative contact is Registration Solutions, 3044 Floor Street West, Suite 529, Toronto, Ontario, Canada M6S 4M4. Email address firstname.lastname@example.org mailto:admin@registrations????. Telephone and facsimile numbers of (416) 410 1243 and (416) 410 1244 respectively were supplied.
The technical and zone contact was Domain Technicians (DT607-ORG) dot@REGISTRATIONSOLUTIONS.COM.
Other contact details for Domain Technicians were the same as those of Registration Solutions.
NSIs 4.0 Service Agreement is in effect.
The domain name registration "VEUVECLICQUOT.ORG" is in "Active" status.
NSI has currently incorporated in its agreements the policy for Uniform Domain Name Dispute Resolution adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN").
The advice from NSI that the domain name in question is still "active", indicates the Respondent has not requested that the domain name at issue be deleted from the domain name database. The Respondent has not sought to terminate the agreement with NSI. Accordingly, the Respondent is bound by the provisions of NSIs Domain Name Dispute Resolution Policy, i.e., the ICANN policy. The Respondent has not challenged the jurisdiction of the Panel.
Having verified that the Complaint satisfied the formal requirements of the Uniform Policy and the Uniform Rules, the WIPO Center on March 22, 2000, transmitted by post/courier and by email a notification of Complaint and Commencement of Administrative Proceedings to the Respondent. A copy of the Complaint was also emailed to NSI and ICANN.
The Complainant elected to have its Complaint resolved by a single panel member: it has duly paid the amount required of it to the WIPO Center.
The Respondent was advised that a Response to the Complaint was required within 20 calendar days (i.e., by April 10, 2000). The Respondent was also advised that any Response should be communicated, in accordance with the Rules, by four sets of hard copy and by email.
On April 12, 2000, the WIPO Center invited the Honourable Sir Ian Barker QC of Auckland, New Zealand, to serve as Sole Panelist in the case. It transmitted to him a statement of acceptance and requested a declaration of impartiality and independence.
On April 12, 2000, the Honourable Sir Ian Barker QC advised his acceptance and forwarded to the WIPO Center his statement of impartiality and independence. The Panelist finds that the Administrative Panel was properly constituted in accordance with the Rules and the Supplemental Rules.
On April 12, 2000, WIPO Center forwarded to the Honourable Sir Ian Barker QC by courier the relevant submissions and the record. These were received by him on April 22, 2000. In terms of Rule 5(b), in the absence of exceptional circumstances, the Panel would have been required to forward its decision by April 27, 2000. However, with the Easter holidays intervening, the decision will be forwarded on or before May 3, 2000.
The Panel has independently determined and agrees with the assessment of WIPO Center that the Complaint meets the formal requirements of the Rules for Uniform Domain Name Dispute Resolution Policy as approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules.
The language of the administrative proceeding is English, being the language of the registration agreement.
On April 20, 2000, WIPO Center and others, including the Panelist, received an email from the "Domain administrator" at email@example.com, alleging that the registration of the Polygenix Group for the domain name had been deleted on a date in January or February 2000, which preceded the issue of WIPO Center procedures. On April 29, 2000, another email from the same source stated that it had been 9 weeks since deletion had been requested and enquired when deletion would be recorded.
In the absence of evidence of actual deletion, and at the request of the Complainant, the Panel has proceeded to adjudicate on the merits of the dispute. The Complainant advises that as at March 14, 2000, NSIs database shows the domain name was still being used by the Respondent as a website.
4. Factual Background
The Complainant is the owner of the VEUVE CLICQUOT mark and name. It produces the world-famous Veuve Clicquot champagne in a variety of styles and currently sells it in 120 countries. Veuve Clicquot champagne has been well-known throughout the world for 200 years. The Complainant or its predecessors and associated corporations own registered trademarks of VEUVE CLICQUOT in many countries, including France and the United States. Veuve Clicquot champagne has been the subject of many articles and other literary works. It has featured in many famous movies. The Complainant has invested much money, time and effort to develop and promote Veuve Clicquot champagne worldwide. Veuve Clicquot is recognized as a leading champagne in many authoritative works on wine.
There is no relationship between the Complainant and the Respondent which would give rise to any licence or permission for the Respondent to use the name Veuve Clicquot. Nor is there any evidence that the Respondent is known by a nickname of that sort.
The Respondent has posted a website at the URL "http:\\veuveclicquot.org" which states that the domain name is not in use but that "individuals or entities with a property interest in the domain name and interested in developing it should contact the registrant directly by email firstname.lastname@example.org."
The Complainant alleges that the Respondent under the names The Polygenix Group or The Polygenix Group Co. is in the business of trafficking in domain names. A search as at March 7, 2000, shows that the Respondent has over 100 domain names on offer, including a large percentage of third-party trademarks and/or service marks. Included in this list are "BLUENUN.NET" and "DUBOEUF.ORG", both trademarks for wine.
The Respondent states on its website its intention to sell domain names for profit thus: "hi, we sell a whole bunch of Great Domain Names that you might be VERY interested in".
5. Parties Contentions
The Complainant submits that the only possible conclusion must be the Respondent is using its world-famous mark, VEUVE CLICQUOT, in bad faith. The facts (a) that the Respondent seeks expressions of interest in developing the domain name from those with "a property interest"; and (b) that the Respondent has offered other well-known marks for sale as domain names, underscores the inevitable conclusion of bad faith.
The Respondent has made no submissions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to:
"decide a complaint on the basis of the statements and documents submitted in accordance with the policy, these rules and any rules and principles of law that it deems applicable".
The burden for the Complainant, under paragraph 4(a) of the ICANN Policy, is to show:That the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and That the Respondent has no rights or legitimate interests in respect of the domain name; and That the domain name has been registered and is being used by the Respondent in bad faith.
The domain name "VEUVECLICQUOT.ORG" is obviously identical or confusingly similar to the Complainants mark. The Panel so decides.
Likewise, the Panel decides that the Respondent has no rights or legitimate interests in the domain name at issue. The Respondent has never suggested to the contrary.
Paragraph 4(b) of the ICANN Policy states:
"For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainants mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
It should be noted that the circumstances of bad faith are not limited to the above.
The Panel considers that the Respondent has registered and used the domain name "VEUVECLICQUOT.ORG"in "bad faith" for the following reasons:
(a) "VEUVECLICQUOT.ORG" is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith.
(b) The Respondents offer to treat with persons with a "property interest" in this domain name is powerful evidence of bad faith: see the decisions in WIPO Center cases of Harrods Ltd v. Boyd (Case No. D2000-0060), China Ocean Shipping (Group) Co. Ltd v. Cao Shan Hui (Case No. D2000-0066). This case is very similar to the Harrods case where the Respondent had sought to sell a domain name in an attempt to capitalize on a name well-known throughout the world.
The present situation is similar to that in Educational Tertiary Service v. TOEFL (WIPO Case D2000-0044) where the learned Panelist said:
"The value which Respondent seeks to secure from sale of the domain name is based on the underlying value of Complainants trademark. This value is grounded in the right of Complainant to use its mark to identify itself as a source of goods or services. Respondent has failed to establish any legitimate domain name-related use for Complainants trademark, in a context in which such legitimization might be possible. The Respondent having failed to present any such justification, the Panel may reasonably infer that Respondent neither intended to make nor has made any legitimate use of Complainants trademark in connection with the [domain name at issue."
Accordingly, for all the various reasons discussed above, the Panel finds that the domain name "VEUVECLICQUOT.ORG" has been registered and is being used by the Respondent in bad faith.
7. Legal Considerations
Although entitled to consider principles of law deemed applicable, the Panel finds it unnecessary to do so in any depth. The jurisprudence which is being rapidly developed by a wide variety of Panelists world-wide under the ICANN Policy provides a fruitful source of precedent.
The Panel notices, however, that Courts in the United States have come to similar conclusions about those who act in a manner similar to the Respondent who endeavor to sell domain names to trademark owners for a profit: see Panavision International LP v. Toeppen, 141 F.3d 1315 (9th Circ. 1998).
For the foregoing reasons, the Panel decides:
(a) that the domain name registered by the Respondent is identical or confusingly similar to the trademark to which the Complainant has rights;
(b) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(c) the Respondents domain name has been registered and is being used in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name "VEUVECLICQUOT.ORG" be transferred to the Complainant.
Hon Sir Ian Barker QC
Dated: May 1, 2000