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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. Herreveld

Case No. D2000-0776

 

1. The Parties

The Complainant is Veuve Clicquot Ponsardin, Maison Fondйe en 1772, a sociйtй anonyme having its seat at 12 Rue de Temple, 51100 Reims, France. The Respondent is Herreveld, having a postal address at Sint Annastraat 41, 3390 Tielt, Winge, Brabant, Belgium.

 

2. The Domain Name and Registrar

The domain name in dispute is "veuvecliquot.com". The registrar with which the said domain name is registered is CORE ("the Registrar").

 

3. Procedural History

On July 12, 2000, the Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by e-mail and in hard copy on July 13, 2000. The appropriate fees were paid by the Complainant.

On July 19, 2000 the Center sent a Request for Registrar Verification to the Registrar and on August 4, 2000 the Registrar confirmed that the said domain name "veuvecliquot.com" was registered through the Registrar, that the Respondent was the current registrant of the said domain name, that the Policy was applicable to the said registration and that the registration was in active status.

On July 19, 2000 the Center sent an Acknowledgement of Receipt of Complaint to the authorized representative of the Complainant by e-mail.

In accordance with Paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and paragraph 5 of the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("the Supplemental Rules") the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules and the Supplemental Rules and that payment in the required amount had been made by the Complainant.

On August 5, 2000 the Center sent a Notification of Complaint and Commencement of Administrative Proceeding relating to the said "veuvecliquot.com" domain name registration to the Respondent by Post/Courier (with enclosures), by facsimile (without enclosures) and by e-mail (without enclosures). A copy of said Notification was sent to the authorised representative of the Complainant by e-mail. Further copies of said Notification were sent to the Internet Corporation for Assigned Names and Numbers ("ICANN") and the Registrar (without enclosures).

Said Notification of Complaint and Commencement of Administrative Proceeding inter alia advised the Respondent that the Administrative Proceedings had commenced on August 5, 2000 and that the Respondent was required to submit a Response to the Center on or before August 24, 2000.

On August 6, 2000 the Center received the Response from the Respondent by e-mail and on August 10, 2000 the Center sent an Acknowledgement of Receipt of Response to the Respondent.

On August 22, 2000 the Center proceeded to appoint James Bridgeman as Administrative Panel after having received a Statement of Acceptance and Declaration of Impartiality from him on August 18, 2000. On August 22, 2000 the case file was transmitted to the Administrative Panel.

In the view of the Administrative Panel, proper procedures were followed and this Administrative Panel was properly constituted.

 

4. Factual Background

The Complainant is a champagne house and the owner of numerous trademark registrations and domain name registrations incorporating the words "VEUVE CLICQUOT". The Complainant and its predecessors in title have used these words in connection with their trade in champagne for over 200 years. The Complainant’s champagnes, distinguished by their use of the trademark "VEUVE CLICQUOT", are currently sold in more than 120 countries throughout the world. The Complainant’s trademark registrations include the French registered trademark number 1613633, "VEUVE CLICQUOT" which has been registered in classes 32 and 33 in respect of numerous goods in said classes including wines.

The Respondent is Jean Pierre Herreveld, the owner and managing director of a company engaged in e-commerce. The said domain name has been registered by the Respondent using only his family name viz. Herreveld and so the Respondent is described by his family name only in the title of these Administrative Proceedings.

 

5. Parties’ Contentions

A. Complainant

The Complainant requests that the said domain name be transferred to the Complainant, or, in the alternative, that the said domain name registration be cancelled and that the Complainant be given advance notice of the said cancellation so that it can register the domain name itself.

The Complainant submits that its trademark "VEUVE CLICQUOT" became famous early in the 200 year history of the champagne house and remains so to the present day. In support of this claim the Complainant has submitted a substantial body of documentation illustrating references to "VEUVE CLICQUOT" champagne including references by third parties in literature and films. These include references in movies such as "Casablanca" and "The Godfather".

The Complainant also submits that throughout its history "VEUVE CLICQUOT" champagne has had songs and poems written about it by numerous famous authors. Many of these have been recorded in a book written by Frederique Crestin-Billet entitled Veuve Clicquot La Grande Dame De La Champagne. Furthermore the Complainant points out that Hugh Johnson’s Modern Encyclopedia of Wine describes the Complainant as a "large, prestigious and influential house."

Furthermore the Complainant has submitted copies of published articles in which journalists describe the "VEUVE CLICQUOT" as a "famous" brand.

The Complainant further submits that Complainant’s "VEUVE CLICQUOT" champagne has been described as "world famous" in the decision of the administrative panel in Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group, WIPO Case No. D2000 –0347 and in Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. Net Promotion, Inc. WIPO Case No. D2000-0347, the administrative panel stated that the Complainant’s "VEUVE CLICQUOT" trademark "is famous and distinctive."

The Complainant submits that the said domain name is confusingly similar and "practically identical" to the Complainant’s trademark. The Complainant points out that the single difference between the Complainant’s trademark "VEUVE CLICQUOT" and the said domain name "veuvecliquot.com" is that the letter "c" does not appear in the said domain name. The Respondent suggests that this was an omission on the part of the Respondent as this is a common misspelling of the Complainant’s said trademark.

The Complainant submits that given the unique character of the Complainant’s trademark and what the Complainant claims to be the practically imperceptible distinction between the mark and the said domain name, consumers, on seeing the domain name will believe it to be related to the Complainant. Moreover, the Complainant submits that consumers, who carry out searches on the Internet using the Complainant’s name and/or marks and/or a slight misspelling thereof, will be directed to the Respondent thus increasing the likelihood of confusion.

The Complainant submits that the Respondent cannot demonstrate or establish any legitimate interest in the said domain name "veuvecliquot.com". The Complainant states that there is no relationship between the Complainant and the Respondent that would give rise to any license, permission or other right by which the Respondent could own or use any domain name incorporating the Complainant’s famous trademark.

The Complainant submits that the Respondent has registered and is using the said domain name in bad faith within the meaning of paragraphs 4(b)(i) and 4(b)(ii) of the Policy. In this regard, the Complainant submits that the Respondent has either registered the said domain name primarily for the purpose of selling, renting or otherwise transferring the said domain name or has done so to prevent the Complainant from reflecting its "VEUVE CLICQUOT" trademark in a corresponding domain name or to misappropriate the goodwill associated with the Complainant’s famous trademark for its own profit such as by selling the domain name to the Complainant or others for profit. In support of this submission the Complainant points to the statement of the administrative panel in Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group, WIPO Case No. D2000 –0347: "VEUVECLIQUOT.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."

Furthermore the Complainant has submitted evidence in the form of a print-out of a www site on which the Respondent has offered the said domain "veuvecliquot.com" for sale.

Furthermore the Complainant submits that the Respondent and/or those acting in concert with the Respondent have a pattern of registering domain names based on well-known marks and names of third parties. The Complainant has submitted that the Respondent has established a www site on which he states that he owns over 90 domain names that are "Available for Sale, Lease, Development or Joint Venture".

The Complainant further states that since registering said domain name "veuvecliquot.com", the Respondent has not made any use of said domain name for a www site. The Complainant also submits that even if the Respondent was to make any use of said domain name for a www site it is impossible to conceive of any legitimate use to which the said domain name could be put by the Respondent. Any such use would run foul of the Policy by being an infringement of the Complainant’s rights under the trademark, unfair competition and dilution laws.

The Complainant concludes by claiming that the Respondent is holding the said domain name "veuvecliquot.com" in bad faith in order to sell the said domain name to the Complainant or to others or to gain some other commercial benefit. It is claimed that this constitutes a direct violation of the Policy and in this regard the Complainant points to the decision of the administrative panel in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 in which the Complainant submits that the administrative panel held that passive holding of a domain name can amount to bad faith.

B Respondent

The brief Response in the form of a two page letter was filed by the said Jean Pierre Herreveld. In essence the Respondent’s submissions consisted of the allegation that the Complainant was engaged in harassment and had not furnished "the right documentation (Verticaldot.com website etc…)"

The Respondent points out that this is the third case taken by the Complainant in the past six months against owners of domain names which could be of commercial value to the Complainant.

The Response states that the domain name in dispute is one of the domains which has been registered by said Jean Pierre Herreveld under his personal name. Mr. Herreveld claims to be the owner and managing director of "Verticaldot.com, a Belgian company currently undergoing a change of name." It is claimed that this company offers a broad range of e-commerce services including the development of city portals, with partnerships with web development companies in Europe and Asia.

The Respondent confirms that the said domain name "has no connection whatsoever with the registered trade names ‘Veuve Clicquot’ and ‘Veuve Clicquot Ponsardin’.

The Respondent states that the said domain name was not and is not for sale. The text on the www site stating ‘this site is for sale’ was an error and part of the standard CORE handle used for city names registered by the Respondent. The Respondent submits that the text has been removed by CORE at the request of the Respondent. This request had been made as soon as the Respondent had been informed of the existence of the statement.

In conclusion the Respondent denies having any intention in developing any activity related to the Complainant or the Complainant’s product. The Respondent states that the Respondent is unwilling to give away the domain name to the Complainant as it is the Respondent’s property.

 

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy the onus rests on the Complainant to prove

i. that the said domain name "veuvecliquot.com" is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

ii. that the Respondent has no rights or legitimate interest in respect of the said domain name; and

iii. that the said domain name "veuvecliquot.com" has been registered and is being used in bad faith.

The Complainant has established that it has rights in the trademark "VEUVE CLICQUOT". In the view of this Administrative Panel the said domain name is confusingly similar to the said trademark. The single difference between the Complainants trademark and the said domain name "veuvecliquot.com" is that the letter "c" does not appear in the said domain name. This difference does not have any significant effect on the appearance of the words and the two letters are merged into a single sound when the word is pronounced.

This Adminstrative Panel is satisfied that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interest in the said domain name. The Complainant has satisfied this Administrative Panel that it is the owner of a famous trademark used in connection with the production and sale of champagne. The Complainant’s goodwill in the said trademark has been built-up over more than two centuries and is now firmly established across the world. In concluding that the said trademark is a famous mark this Administrative Panel has considered the evidence submitted by the Complainant and would wish to clearly state that in reaching this decision this Administrative Panel is not bound by or following any findings of facts in the decisions in the earlier cases involving the Complainant viz. Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group, WIPO Case No. D2000–0347 and Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. Net Promotion, Inc. WIPO Case No. D2000-0347 to which the Complainant refers in the Complaint.

Furthermore the said trademark "VEUVE CLICQUOT" is not only famous, but very distinctive, being made up of the words "veuve" meaning "widow" and the surname "Clicquot".

The Complainant has asserted that the Respondent has not been given any right or licence to use the said trademark or the said domain name. Having regard to the distinctiveness and fame of the said trademark and the extent of the similarity between the said mark and the said domain name, on balance it is highly unlikely that the Respondent has acquired any rights or legitimate interest in the said domain name. The Respondent has not made out any case as to how the Respondent came to decide on this domain name. It is improbable that the Respondent was not aware of the Complainant’s reputation. The Respondent has made no attempt whatsoever to address this issue, whether by providing evidence along the lines suggested in paragraph 4(c) of the Policy or otherwise. Consequently in the view of this Administrative Panel the Complainant has satisfied the burden of proof that the Respondent has no rights or legitimate interest in the said domain name.

The Complainant has furnished evidence that the Respondent has advertised said domain name for sale, although the Respondent states that the advertisement was posted on a www site in error. The Respondent has not established a www site accessible via the said domain name. Furthermore this Administrative Panel accepts the Complainant’s submission that it is impossible to conceive of any legitimate use to which the said domain name could be put by the Respondent.

This Administrative Panel concludes that on balance the Complainant has established that the Respondent registered said domain name "veuvecliquot.com" primarily for the purpose of selling, renting, or otherwise transferring the said domain name registration to the Complainant who is the owner of the trademark "VEUVE CLICQUOT", or to a competitor of the Complainant for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the said domain name. In accordance with paragraph 4(b)(i) of the Policy this Administrative Panel therefore concludes that the said domain has been registered and is being used in bad faith.

 

7. Decision

With specific reference to paragraph 4(i) of the Policy and paragraph 15 of the Rules this Administrative Panel decides that the Respondent has registered the domain name "veuvecliquot.com" identical or confusingly similar to the Complainant’s trademark, that the Respondent has no rights or legitimate interest in respect of said domain name and that the Respondent has registered and is using said domain name in bad faith. Accordingly, this Administrative Panel decides that said domain name "veuvecliquot.com" should be transferred to the Complainant.

 

 


 

James Bridgeman
Sole Panelist

Dated: September 8, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0776.html

 

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