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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

AB Tetra Pak v. Jose Luis Lorenzo Mendez

Case No. D2000-0531

 

1. The Parties

Complainant is AB Tetra Pak , a corporation organized and exiting under the laws of Sweden, Ruben Rausings gata. 2212 86, Lund, Sweden, represented by Anna Maria Lagerqvist, LL.M, Euro909.com, legal division, P.O. Box 7101, 200 42 Malmø, Sweden.

Respondent is Jose Luis Lorenzo Mendez, San Lorenzo, 4-primero, La Laguna, Tenerife 38108, Spain.

 

2. The Domain Name and Registrar

The domain name at issue is <tetrabrik.com>. The registrar is Network Solutions, Inc. ("NSI"), Herndon, Virginia, United States of America.

 

3. Procedural History

A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on May 31, 2000, and the signed original together with four copies was received by the WIPO Center on June 6, 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant, dated June 2, 2000.

On June 2, 2000, a Request for Registrar Verification was transmitted to the Registrar, NSI. The same day NSI confirmed by e-mail that NSI was in receipt of the Complaint sent to NSI by the Complainant, the domain name <tetrabrik.com> was registered with NSI and that the Respondent was the current registrant of the name. The Registrar also forwarded the requested WHOIS details, confirmed that the Uniform Domain Name Dispute Resolution Policy was in effect and stated that the domain name was on "Active" status.

The policy in effect at the time of the original registration of the domain name at issue was Network Solutions 4.0 Service Agreement. Effective January 1, 2000, NSI adopted the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"). There is no evidence that the Respondent ever requested that the domain name at issue be deleted from the domain name database. Accordingly, the Respondent is bound by the provisions of Policy.

A Formal Requirements Compliance Checklist was completed by the assigned WIPO Center Case Administrator on June 6, 2000. The Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy, as approved by ICANN on October 24, 1999 (the "Uniform Rules"), and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy, in effect as of December 1, 1999 (the "WIPO Supplemental Rules"). The required fees for a single-member Panel were paid on time and in the required amount by the Complainant.

No formal deficiencies having been recorded, on June 6, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of June 25, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s WHOIS confirmation, as well as to <postmaster@tetrabrik.com>. In addition, the Complaint was sent by post/courier to the available postal address.

The Respondent sent an e-mail to the WIPO case manager on June 16 responding to the received complaint. In the e-mail the Respondent explained his intention behind the expected use of the domain name, and he denied any wrongful doing in that connection. The WIPO case manager acknowledged and responded to the e-mail the same day, referring the Respondent to file a formal response pursuant to Para. 5 of the Rules before the already fixed deadline of June 25.

On June 27, 2000, having received no Response from the designated Respondent, apart from what has been mentioned above, the WIPO Center transmitted to the parties a Notification of Respondent Default.

On July 3, 2000, in view of the Complainant’s designation of a single panelist (but without prejudice to any election to be made by the Respondent) the WIPO Center invited Mr. Knud Wallberg to serve as a panelist in Case No. D2000-0531, and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence.

Having received on July 10, 2000, Mr. Knud Wallberg’s Statement of Acceptance and Declaration of Impartiality and Independence, on July 13, 2000, the WIPO Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Knud Wallberg was formally appointed as the Sole Panelist. The Projected Decision Date was July 26, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Uniform Rules and WIPO Supplemental Rules.

The Administrative Panel shall issue its Decision based on the Complaint, the e-mails exchanged, the Policy, the Uniform Rules, the WIPO Supplemental Rules, and without the benefit of a formal response from the Respondent.

 

4. Factual Background

The Complainant, AB Tetra Pak, is a company within the multinational Tetra Laval Group. The Tetra Laval Group consists of three industry groups – Tetra Pak, Alfa Laval and Alfa Laval Agri – which, operate independently within their respective product areas. The industry groups are financed centrally and jointly by Tetra Laval Finance, with holding company functions exercised by Tetra Laval International. The overall strategy of the Tetra Laval Group is to supply systems for the production and distribution of food.

AB Tetra Pak’s main activities consist of the development, manufacturing and sale of systems for the processing, packaging and distribution of liquid food products and ice cream.

The Complainant has 60 plants and more than 70 marketing offices around the world.

The Complainant has developed packages, which protect both the nutritional value and the taste of the packaged product. One of the main products in the Complainant’s comprehensive product portfolio is TETRA BRIK.

The TETRA BRIK aseptic carton, was introduced in 1969. The TETRA BRIK packages do not require cool storage during transport or storing, which gives financial and ecological advantages. Further, the rectangular-shaped TETRA BRIK packages stock with dimensions conforming to international loading pallet standards. The TETRA BRIK packages is the most frequently used packages for long life products and the technique of forming containers from paper on rolls. More than 200 million Tetra Pak packages are distributed in more than 150 countries all over the world every day. In 1998, sales amounted to CHF 11 billion. Tetra Pak has more than 18 000 employees.

The Complainant is the proprietor of more than 240 trademark registrations of the word TETRA BRIK in countries all over the world. The Complainant uses the mark to promote and market the TETRA BRIK products in more than 200 countries all over the world, including Spain were the Respondent is located. The annexes to the complaint contain evidence to these facts.

The Complainant uses its trademarked name TETRA BRIK in connection with the promotion and marketing of its products and services on its Internet web site found at [ http://www.tetrapak.com].

The Complainant is also the registrant of more than 28 domain names containing the word <TETRA>. A list of the domain names was provided as an annex to the complaint.

 

5. Parties’ Contentions

A. Complainant

The domain name tetrabrik.com, registered by the Respondent, is identical with more than 240 trademark registrations of the word TETRA BRIK held by the Complainant in countries all over the world.

The Respondent is not in any way authorised by the Complainant to use the trademarked name TETRA BRIK. The Respondent is neither authorised to apply for or use any domain name incorporating the trademark held by the Complainant.

The Respondent has not shown any demonstrable preparations to use the domain name in connection with a bona fide offering of good of services. Further, there is no indication that the Respondent should be commonly known by the domain name or has any other legitimate non-commercial or fair use of the domain name.

The Respondent has not made any good faith use of the domain name and it is clear that the Respondent has no rights or legitimate interests in respect of the domain name.

The name TETRA BRIK is registered as a trademark in more than 200 countries all over the world, including Spain where the Respondent is located. The trademark TETRA BRIK and the products associated with it are well known internationally. The Complainant has spent substantial time, effort and means advertising and promoting the TETRA BRIK trademark all over the world since 1969. The TETRA BRIK packages are the most frequently used packages for long life products and they are distributed and used all over the world on a daily basis.

In Nokia Corporation v. Nokiagirls.com a.k.a. IBCC, Case No. D2000-0102, the Panel stated that the trademark NOKIA was considered to "…enjoy such fame internationally that it cannot be reasonably argued that Respondent/IBCC could have been unaware of the trademark rights vested therein when registering the domain name.". The same argument was applied by the Panel regarding the trademark SCANIA in Scania CV AB v. Leif Westley, Case No. D2000-0169.

The TETRA BRIK mark must be considered to have enjoyed such fame internationally as mentioned above and accordingly it cannot reasonably be argued that the Respondent could have been unaware of the trademark rights of the Complainant when registering the domain name. In conclusion there can be no doubts regarding the fact that the Respondent registered the domain name in bad faith.

The domain name tetrabrik.com resolves to a web site displaying the following message " Welcome -This site is currently under construction. Please check back at a later time." A standard page provided by the Registrar Network Solution.

The Respondent has not promoted or tried to market the domain name. Neither has the Respondent directly offered to sell, rent or otherwise transfer the domain name to the Complainant. However, as determined in Telstra Corporation Limited v. Nuclear Marshmallows, Case No. D2000-0003, "… the relevant issue is not whether the Respondent is undertaking a positive action in bad faith in relation to the domain name, but instead whether, in all circumstances of the case, it can be said that the Respondent is acting in bad faith". Inaction is clearly within the concept of "being used in bad faith" and it is possible for inactivity by the Respondent to amount to the domain name being used in bad faith.

The trademark TETRA BRIK has become famous and gained reputation through use all over the world and the Complainant has gained an enormous amount of goodwill in the mark over the years. The Respondent is a private person well aware of the Complainant’s trademark rights when registering the domain name. Under these circumstances there can be no doubts regarding the Respondent’s purpose of the registration. The domain name tetrabrik.com was registered by the Respondent primarily with the purpose of selling, renting or otherwise transferring the domain name to the Complainant or to a competitor of the Complainant for a valuable consideration in excess of out-of-pocket costs directly related to the domain name. In light of the above the Respondent’s passive holding of the domain name must amount to acting in bad faith and the criteria of being used in bad faith must be fulfilled.

In conclusion, all the above clearly shows that the domain name tetrabrik.com is identical or confusingly similar to the Complainant’s registered trademarks, 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 in bad faith.

In accordance with Paragraph 4 (i) of the Policy, the Complainant requests the Administrative Panel appointed in this administrative proceeding to issue a decision that the contested domain name tetrabrik.com shall be transferred to the Complainant.

B. Respondent

As mentioned above under 3, the respondent has not filed a formal response in accordance with the Rules, Para. 5.

In the e-mail sent to the WIPO Center the Respondent has explained the idea behind the registration of the domain name, namely that the intention is to create a web site on which the Respondent will offer a full service package to potential franchise businesses in Spain.

 

6. Discussion and Findings

According to Paragraph 15(a) of the Rules the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

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 or confusingly similar to a trademark or service mark in which the Complainant has rights; and,

2) that the Respondent has no legitimate interests in respects of the domain name; and

3) the domain name has been registered and used in bad faith.

The domain name <tetrabrik.com> is identical or quasi-identical with the trademark TETRA BRIK except for the addition .com.

The Complainant has not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating the mark. Further, the Respondent has not proven that he has any prior rights or legitimate interests in the domain name.

The prerequisites in the Policy, Paragraph 4 (a) (i) and (ii), cf. 4 (c) are therefore fulfilled.

Paragraph 4 (a) (iii) of the Policy further provides registration and use in bad faith.

Paragraph 4 (b) regulates the kind of evidence that is required.

It is obvious from the facts in the case, i.e.:

- the prior ownership by the Complainant of numerous identical trademark registrations of the mark TETRA BRIK,

- the identity between this mark and the distinctive part of the domain name at issue,

- the fact that the word TETRA BRIK has a high degree of individuality and distinctiveness,

- the fact that it is highly improbable that the Respondent has selected the name without having knowledge of the Complainants trademark rights in Spain and elsewhere,

- the wide reputation in the word TETRA BRIK, and

- the non-contested statement in the Complaint and the contents of the Policy Paragraphs 4 (a)(i-iii) and 4(b)(iv),

- that the domain name has been registered and is being used in bad faith, cf. Telstra Corporation Limited v. Nuclear Marshmallows, Case No. D2000-0003, and several other subsequent decisions.

Consequently, all the prerequisites for cancellation or transfer of the domain name according to Paragraph 4(a) and (b) of the Rules are fulfilled.

The Complainant has requested transfer of the domain name.

 

7. Decision

In view of the above circumstances and facts the Panel decides, that the domain name registered by Respondent is identical to or quasi-identical to the trademark 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 Respondent’s 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 <tetrabrik.com> be transferred to the Complainant.

 


 

Knud Wallberg
Presiding Panelist

Dated: July 17, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0531.html

 

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