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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Alba Moda GmbH, Josef Witt GmbH & Co. KG and Sport Scheck GmbH v. Brent Langton/Victory Productions
Cases No. D2001-0425, D2001-0426 and D2001-0427
1. The Parties
The Complainants are Alba Moda GmbH (D2001-0425), with its address at Wandsbeker Strasse, 3-7, D-22179 Hamburg; Josef Witt GmbH & Co. KG (D2001-0426), with its address at Wandsbeker Strasse, 3-7, D-22179 Hamburg; and Sport Scheck GmbH (D2001-0427), with its address at Wandsbeker Strasse, 3-7, D-22179 Hamburg, Germany.
The Respondent is Brent Langton (D2001-0425 and 0426), of Victory Productions (D2001-0427), with its address at 615 17th Street, Huntington Beech, CA 92648, United States of America.
2. The Domain Name and Registrar
The domain names at issue are:
The registrar is Network Solutions Inc.
3. Procedural History
The Complaints were received by WIPO by e-mail on March 26, 2001, and in hardcopy form on March 29 2001. WIPO has verified that the complaints satisfy the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Registrar has confirmed that <albamoda.com>, <wittweiden.com>, <sportscheck.org> ("the domain names") were registered through Network Solutions Inc. and that in the case of the first two of the domain names Brent Langton of Victory Productions and in the case of <sportscheck.org> Victory Productions is the current Registrant. For the purposes of this decision, the Panel treats Brent Langton of Victory Productions ("the Respondent") as the Registrant of all the domain names. The Registrar has further confirmed that the Policy is applicable to the domain names.
On March 28, 2001, in each of the three cases the Complainants e-mailed WIPO in the following terms:
"After having received our complaint, the Respondent contacted us and promised to transfer the domain until Friday. Therefore, we kindly ask you not to start the proceedings before Friday March 30, 2001".
On April 3, 2001, the Complainants notified WIPO that the transfers had not taken place and requested WIPO to proceed with the Complaints.
On April 10, 2001, WIPO notified the Respondent of the three Complaints in accordance with the Rules, paragraph 2(a), and informed the Respondent, inter alia, that the last day for sending its responses to the Complainants and to WIPO was, in each case, April 29, 2001.
On April 30, 2001, no written responses having been filed, WIPO issued Respondent Default Notifications.
The Panel was properly constituted. The undersigned panelists submitted statements of acceptance and declarations of impartiality and independence. No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panel’s decision is June 11, 2001.
In each Complaint the Complainants point out that they are all subsidiaries of the same parent company, Otto Versand, and that the Respondent is the same, or effectively the same, Mr. Brent Langton being the President of Victory Productions. The Complainants request that the Complaints be heard by the same Panel and be amalgamated into one proceeding. As is apparent from the heading, WIPO has appointed the same Panel for each Complaint and the Panel has agreed to treat the three Complaints as one.
4. Factual Background
The Complainants are Hamburg based mail order companies being subsidiaries of Otto Versand. Between them, they are the proprietors of a variety of trade mark registrations for the marks ALBA MODA, WITT WEIDEN and SPORT-SCHECK.
The trade mark registrations pre-date the dates of registration of the domain names by the Respondent, the domain names having been registered in the course of 1999.
5. Parties’ Contentions
The Complainants’ contentions are as follows:
The domain names are identical or confusingly similar to the registered trade marks of the Complainants. The Respondent worked for five years for Otto Versand, the Complainants’ parent company, until that business relationship was terminated by the Complainants and/or Otto Versand.
Thereafter, the Respondent registered the domain names without the authority of the Complainants.
Having learnt of the registrations of the domain names, the Complainants contacted the Respondent. Initially, he agreed to transfer the domain names to the Complainants, but subsequently said that he would only do so if the business relationship between him and Otto Versand and/or its subsidiaries was re-established.
The Complainants make other allegations in respect of the Respondent and his motivation for registering the domain names, but for present purposes the above is sufficient.
The Respondent has not responded.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainants must prove that:
(i) The domain names are identical or confusingly similar to trade marks or service marks in which the Complainants have rights.
(ii) The Respondent has no rights or legitimate interests in respect of any of the domain names.
(iii) The domain names have been registered and are being used in bad faith.
Identical or Confusing Similarity
To succeed under this head, the Complainants first have to prove that they have rights in relevant trade marks or service marks. They then have to prove that the domain names are identical or confusingly similar to those trade marks or service marks.
Exhibited to the Complaints are copy trade mark registration certificates confirming that the Complainants are between them the proprietors of the trade marks ALBA MODA, WITT WEIDEN and SPORT-SCHECK.
The domain names are in substance those trade marks with the addition of the generic domain suffix.
The Panel finds that the domain names are identical or confusingly similar to trade marks in which the Complainants have rights.
Rights or Legitimate Interests of the Respondent
The Respondent not having responded to the Complaints and the Panel having no reason to doubt what is set out in the Complaints, the Panel accepts that when the Respondent registered the domain names, the Respondent knew perfectly well that the names were trade marks of the Complainants.
Accordingly, the Complainants have made out a prima facie case under this head that the Respondent has no rights or legitimate interest in respect of the domain names.
Paragraph 4(c) sets out a non-exhaustive list of circumstances which, if found by the Panel to be present, demonstrate the Respondent’s rights or legitimate interest in respect of the domain names. The Respondent has produced no evidence of any kind to demonstrate the presence of any of those circumstances. The Respondent has not responded.
The Panel has nothing before it to suggest why the Respondent could be said to have any rights or legitimate interests in respect of the domain names.
The Panel holds that the Respondent has no rights or legitimate interests in respect of any of the domain names.
A non-exhaustive list of what constitutes bad faith registration and use is set out in paragraph 4(b) of the Policy. For present purposes, it is not necessary to read beyond paragraph 4(b)(i) which is in the following terms:-
"Evidence of registration and use in bad faith. 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 trade mark 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…"
In the absence of any explanation from the Respondent, the Panel accepts as fact what is said in the Complaint, namely that the Respondent registered the domain names knowing that they were the trade marks of the Complainants and as a bargaining tool for re-establishing the business relationships between the Complainants and the Respondent.
Clearly, the objective was to sell the domain names to the Complainants for a valuable consideration well in excess of the Respondent’s out-of-pocket expenses.
The Panel holds that the domain names and each of them were registered in bad faith and are being used in bad faith.
In light of the foregoing findings, namely that the domain names are identical or confusingly similar to trade marks in which the Complainants have rights and that the Respondent has no rights or legitimate interests in respect of the domain names and that the domain names and each of them were registered in bad faith and are being used in bad faith, the Panel directs that the domain names <albamoda.com>, <wittweiden.com> and <sportscheck.org> be transferred to the Complainants.
Carol Anne Been
Dated: June 1, 2001