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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Spadel S.A. v. Peter Kisters
Case No. D2000-0526
1. The Parties
Complainant is Spadel S.A., Colonel Bourg Straat 103, 1030 Brussels, Belgium, represented by Laurent de Brouwer, attorney, rue Edmond Picard 25, 1050 Brussels, Belgium, hereinafter the "Complainant".
Respondent is Peter Kisters, whose address is, according to Network Solution’s database, Highstreet 3, Bodden Town, Cayman Island 1562, Canada, but whose legal domicile is, pursuant to the Belgian National Register of Physical Persons, Arme Duivel Straat 6, 2000 Antwerp, Belgium, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is "spadel.com", hereinafter referred to as the "Domain Name". The registrar is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complainant’s complaint on May 30, 2000 (electronic version) and June 2, 2000 (hard copy). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is June 9, 2000.
On June 6, 2000, the Center transmitted via email to Network Solutions Inc. a request for registrar verification in connection with this case. On June 8, 2000, Network Solutions Inc. transmitted via email to the Center, Network Solutions’ Verification Response, confirming that the Respondent is the registrant as well as the administrative and billing contact, and that Network Solutions is the technical and zone contact.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on June 9, 2000, to Respondent and to Network Solutions, Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier, facsimile and e-mail, in accordance with the following contact details:
Cayman Islands 1562
Fax : 1 800 613 15 12
E-mail : email@example.com
Arme Duivel Street 6
WorldNIC Name Host
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170
E-mail : namehost@WORLDNIC.COM
The Center advised that the Response was due by June 28, 2000. However, no Response was submitted. Accordingly, the Center issued a Notification of Respondent Default on July 3, 2000.
On July 3, 2000, in view of the Complainant’s designation of a single panelist, the Center invited M. Geert Glas to serve as a panelist.
Having received on July 3, 2000, M. Geert Glas' Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Geert Glas was formally appointed as the Sole Panelist. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the complaint, the evidence presented, the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The complaint is based upon several trademarks for the term "Spadel", of which Complainant is the owner, according to copies of trademark registrations submitted in annex to the complaint. These are:
- In the UK, the figurative trademark n° 133 67 64 registered on February 26, 1988, for class 32;
- In the UK, the verbal trademark n° 133 01 89, registered on December 21, 1987, for class 32;
- In Denmark, the verbal trademark n° VR 03.241 1974, registered on January 11, 1974, for class 32.
SPADEL is also the company name and tradename of Complainant, which is the leading Benelux producer of mineral water and lemonade beverages. These beverages are marketed under several brands including SPA, BRU and SPONTIN.
There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainant’s mark.
In Network Solutions’ database Respondent is mentioned as "FROM KISTERS PETER, THIS NAME IS FOR SALE". In addition to that, the Domain Name is connected to a web page stating:
THIS DOMAIN NAME IS FOR SALE: US$ 9,500
Don’t hesitate and buy this address now, while it is still at a good price.
Please feel free to contact us to obtain more information and send your questions to the email address below:
5. Parties Contentions
Complainant contends that the Domain Name is identical to Complainant's "Spadel" trademark, that 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 in bad faith.
Consequently, Complainant requires the transfer of the Domain Name registration.
No response has been submitted.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by the Respondent is identical to the trademark in which the Complainant has rights; and,
(2) that the Respondent has no legitimate interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered and is being used in bad faith.
The Domain Name is "spadel.com".
"Spadel" is a registered trademark of the Complainant.
In view of the above, the Administrative Panel finds that the Domain Name is identical to the trademark "Spadel" of the Complainant.
- Rights or Legitimate Interests
Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for any domain name incorporating any of those marks.
There is no indication that Respondent would have carried out any bona fide activity under the SPADEL name or would have been commonly known under that name.
By not submitting a response, Respondent has failed to invoke any circumstance, which could demonstrate, pursuant to paragraph 4c of the Policy, any rights or legitimate interests in the Domain Name.
The Administrative Panel therefore finds that Respondent has no right or legitimate interest in the Domain Name.
- Registration and Use in Bad Faith
Several facts have to be taken into consideration when assessing the absence/presence of bad faith in this matter:
- Respondent has his legal domicile in Belgium where Complainant is the leading producer of mineral waters and lemonade beverages. It can therefore reasonably be assumed that when registering the Domain Name, Respondent knowingly and purposefully chose a name, which is identical and limited to the trademark, company name, and commercial name of Complainant.
- From the indication appearing in Network Solutions’ database, as well as the text contained on the "www.spadel.com" web page, there can be no doubt that Respondent registered the Domain Name for the exclusive purpose of selling it, and subsequently also advertised it for sale.
- Respondent did not file any Response.
In consideration of the facts above stated, the Administrative Panel finds that circumstances are present indicating that Respondent has registered the Domain Name primarily for the purpose of selling, or otherwise transferring it to Complainant who is the owner of the trademark "Spadel" or to a competitor of Complainant, for valuable consideration in excess of out-of-pocket costs directly related to the Domain Name.
In conclusion and in view of the above, the Administrative Panel finds that Respondent has registered and has been using the Domain Name in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name "spadel.com" registered by Respondent is identical to the trademark of Complainant, that Respondent has no right or legitimate interest in respect of the Domain Name, and that the Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4, i of the Policy, the Administrative Panel requires that the registration of the Domain Name "spadel.com" be transferred to Complainant.
Date: July 19, 2000