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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

LOFO High Tech Film GmbH v. Hagop Doumanian

Case No. D2000-1085

 

1. The Parties

The Complainant in this administrative proceeding is LOFO High Tech Film GmbH, Weil am Rhein, Germany, represented by Amy J. Benjamin, Esq., Darby & Darby, P.C., New York, USA.

Respondent is Hagop Doumanian, Las Vegas, Nevada, USA.

 

2. The Domain Name and Registrar

The domain name that is subject of this Complaint is lofo.com

The registrar with which the domain name is registered is CORE, Geneva, Switzerland.

 

3. Procedural History

A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on August 17. The Complaint was later filed by fax and hard copy. The WIPO Center sent an Acknowledgement of Receipt of the original Complaint on August 22, 2000. After having received a Deficiency Notification from the WIPO Center an amended complaint was filed on August 31.

On August 24, 2000, a Request for Registrar Verification was transmitted to the Registrar. The Registrar confirmed on the same day the information in the request and forwarded the requested WHOIS details, and stated that the domain name was on "production" status.

The policy in effect at the time of the registration of the domain name at issue is ICANN UDRP Policy.

The assigned WIPO Center Case Administrator completed a Formal Requirements Compliance Checklist on September 18, 2000.

The Panel has independently determined and agrees with the assessment of the WIPO Center that the amended Complaint is in formal compliance with the applicable requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy, and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy.

The required fee for a single-member Panel has been paid by the Complainant.

No formal deficiencies having been recorded, on September 18, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, the Registrar and ICANN), setting a deadline of October 7, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by the required means.

The Respondent did not file a formal response within the specified period. Accordingly, on October 9, 2000, the WIPO Center sent a Notification of Respondent Default to the parties.

On October 19, 2000, in view of the Complainant’s designation of a single panelist the WIPO Center invited Mr. Knud Wallberg to serve as a panelist in Case No. D2000-1085, and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence.

Having received Mr. Knud Wallberg’s Statement of Acceptance and Declaration of Impartiality on October 23, Mr. Knud Wallberg was formally appointed as the Sole Panelist on October 25. The Projected Decision Date was November 7, 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 Policy, the Uniform Rules and the WIPO Supplemental Rules.

4. Factual Background

Complainant, LOFO High Tech Film GmbH ("LOFO"), is a member of the Lonza Group of companies, a leading developer and manufacturer of speciality chemicals for a wide variety of industries, including pharmaceuticals, agrochemicals, vitamins, biotechnology, print finishing, and personal care.

LOFO is the successor company of LONZA-FOLIEN GmbH, which was founded in 1928. Since 1928, LOFO and its successors have developed and produced high tech solvent cast films for technically demanding applications.

Since January 1999, LOFO has manufactured and sold laminating films, films for cartoons, scales and name plates, base film for photo-sensitive coating, protective covers and sleeves, LCD-screens and polarises, membranes for microphones and loudspeakers, carrier film for enzymes, safety film, weather proof film (for indoor and outdoor use) and optical film with high temperature resistance for LCD-screens, bearing the mark LOFO.

In 1999, sales of products referenced in the prior paragraph, bearing the LOFO mark exceeded 25 million dollars (U.S.). Such products are sold worldwide, including the United States.

LOFO annually spends approximately $150,000 promoting its products world-wide.

LOFO is the owner of German Trademark Registration No. 398 69 782 for the mark LOFO for "plastic film for wrapping; plastic film for not wrapping." LOFO filed the application which resulted in German Trademark Registration No. 398 69 782 on December 3, 1998.

LOFO is also the owner of pending U.S. Trademark Application No. 75/677,797 for the mark LOFO for "plastic film for industrial for commercial wrapping; plastic film for industrial and commercial packing use." Application Serial No. 75/677,797 was filed on April 8, 1999 and has been approved for publication by the U.S. Patent and Trademark Office.

LOFO also owns and operates a website at <www.lofo.de>.

Purchasers of LOFO branded products include such well know companies as Polaroid, General Electric, 3M, Novartis and Fuji.

 

5. Parties’ Contentions

A. Complainant on February 15, 2000 after LOFO changed its name from LONZA FOLIEN GmbH to LOFO High Tech Film GmbH, filed its trademark applications for the mark LOFO and began selling products world-wide bearing the LOFO trademark, Respondent Hagop Doumanian registered the domain name <www.lofo.com> (hereafter the "Domain Name").

The Domain Name is identical or confusingly similar to LOFO’s registered and common law trademark LOFO.

In July, 2000, LOFO’s counsel sent Respondent a cease and desist letter asking him to cancel or transfer the Domain Name to LOFO due to the fact that it is identical to LOFO’s well known LOFO trademark, is not being used in connection with a legitimate business and is not registered for any lawful purpose. Respondent did not claim the said letter, but the parties did make contact later on that month via e-mail.

Until August 10, 2000, the Domain Name automatically dissolved to one of two websites also owned or controlled by Respondent – <www.miamigirls.com> or <www.usaonline.com>. Copies of the printout of database searches conducted by Network Solutions, Inc. on August 7, 2000 for <www.miamigirls.com> and <www.usaonline.com> were provided as Annexes to the complaint.

The website at <www.miamigirls.com> contains explicit pornographic material. The miamigirls.com website prominently advertises and promotes pornographic materials featuring teenagers who are likely under the age of 18. Access to these pornographic pictures is available to members of the website who pay a membership fee of $59.95 for 3 months. Pages printed from the miamigirls.com website were provided as an Annex.

The website at <www.usaonline.com> is a website, which offers domain names for sale. On at least July 10, 2000, the Domain Name automatically dissolved to the usaonline.com website, which offered the Domain Name for sale. A copy of the home page of the usaonline.com website, to which the Domain Name automatically dissolved on July 10, 2000, was provided as an Annex to the Complaint.

The records of Network Solutions, Inc., show the registrant of <www.usaonline.com> as Netico, Inc. ("Netico"). Respondent is listed as the administrative, technical, zone and billing contact. The contact information for Netico and Respondent are identical.

A search of the records of Network Solutions, Inc., for additional domain names registered by Respondent or Netico was aborted after the first 50 records were found. A copy of the results of the search, performed on August 7, 2000 was provided as an Annex to the Complaint.

The registrant information for each of the domain names located by the search described in the previous paragraph revealed that all of the domain names were owned by Netico and that Respondent was listed as the administrative, technical, zone and billing contact for each. Again, the contact information for Netico and Respondent were identical to the information listed for the Domain Name. Of the 50 domain names on this list 11 automatically dissolve to the pornography website at <www.miamigirls.com>, 14 automatically dissolve to the website at <www.usaonline.com> at which they are listed as being "for sale" and 25 did not dissolve to a website or any on-line presence at all.

On August 9, 2000, counsel for LOFO telephoned Respondent. A man who identified himself as "Jack Doumanian" ("Mr. Doumanian") answered the phone. Mr. Doumanian acknowledged receipt of the cease and desist letter.

Mr. Doumanian stated that as a result of the cease and desist letter, he would stop forwarding the Domain Name to the pornography site at www.miamigirls.com. Instead, he would forward it to the website at www.usaonline.com.

Mr. Doumanian confirmed that he owned many domain names and that many of them were for sale. He stated that he would make the Domain Name available for sale to third parties.

As of August 10, 2000, the day after the telephone call with Mr. Doumanian, the Domain Name no longer accessed the miamigirls.com website. Instead, as threatened by Mr. Doumanian, it now accessed a home page, which listed the Domain Name as for sale. The home page is identical to the home page for the usaonline.com website. Both are home pages sponsored by <www.bestoftheweb.com>, a website which does not appear to be owned or operated by Respondent.

The fact that Registrant has registered so many domain names which are offered for sale rather than used with a legitimate business interest is evidence that Respondent has used and registered the Domain Name in bad faith.

Respondent is not a licensee of LOFO and has not received any permission from LOFO to use any domain name incorporating the LOFO trademark.

There is no evidence that Respondent, or any business he may have, has been commonly known by the Domain Name or any variation of it.

Respondent has shown no demonstrable use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services.

There is no evidence that Respondent is using the Domain Name in a legitimate, non-commercial or fair use manner.

The fact that Respondent stated and has now offered to sell the Domain Name to third parties other than LOFO is evidence that the Domain Name was registered and is used in bath faith. See, e.g., Parfums Christian Dior v. QTR Corp., WIPO Case No. D2000-023; J. Crew Int’l, Inc. v. crew.com, WIPO Case No. D2000-00054.

The association of LOFO’s trademark with a pornography website featuring teenage and underage models will severely damage LOFO’s reputation. Further, the fact the Registrant has registered so many domain names which are either linked to pornography web sites or are listed as "for sale" is evidence that Registrant is using the Domain Name to attempt to attract Internet users to his website for commercial gain. See CAA Indus., Inc. v. Bobby R. Dailey, WIPO Case No. D2000-0148; World Wresting Federation Entertainment, Inc. v. Matthew Bessette, WIPO Case No. D2000-0256.

Based on a totality of the evidence and the circumstances, it is clear that Respondent has registered and is using the Domain Name in bad faith.

B. Respondent

Respondent has not filed a response.

 

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:

i) 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,

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

iii) that the domain name has been registered and is being used in bad faith.

I) Complainant’s rights

Complainant has furnished evidence that LOFO is registered as a trademark in Germany and applied for in the USA. LOFO is also the dominant part of Complainant’s Company Name. The distinctive part of the disputed domain-name is identical to this word.

ii) Respondents legitimate interests

The Complainant has not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating the mark.

The Respondent has not furnished any specific evidence in support of his rights or legitimate interest in the name.

LOFO has to the best of the Panel’s knowledge no well-known secondary meaning that would make it natural for any other entity than the Complainant to chose and register as domain name, nor is it a descriptive term.

On this background the Panel finds that the Respondent has no prior rights or legitimate interests in the domain name.

iii) Bad faith

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

Given the presented and undisputed facts of the case the Panel finds that the domain name has been registered with knowledge of the Complainant’s rights to the trademark and business sign LOFO.

In addition the activities performed on the website with the address www.lofo.com as well as the later actions taken by Respondent clearly show that the domain name is being used in bad faith, cf. Paragraph 4(b) of the Policy.

On the basis of an overall assessment of these facts the Panel finds that also the rules in the Policy, Paragraph 4(a)(iii) cf. 4(b) are present in this case.

Consequently, all the preconditions for cancellation or transfer of the domain name according to Paragraph 4(a) of the Policy 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 confusingly similar to the trademark LOFO 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 in bad faith.

Accordingly, pursuant to Paragraph 4(i) of the Policy and 15 of the Rules, the Panel requires that the registration of the domain name lofo.com be transferred to the Complainant.

 


 

Knud Wallberg
Presiding Panelist

Dated: November 3, 2000

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2000/d2000-1085.html

 

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