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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Bundesrepublik Deutschland (Republic of Germany)

vs.

RJG Engineering Inc./Gerhard Lauck

Case No D2002-0110

 

1. The Parties

The Complainant is Bundesrepublik Deutschland (Republic of Germany). The Complainant is represented by RAe Jones Day Reavis & Pogue, of Frankfurt am Main, Germany.

The Respondent is RJG Engineering Inc./Gerhard Lauck of Lincoln, Nebraska, USA. The Respondents are not represented and indeed have not filed a Response.

 

2. The Domain Name and Registrar

The domain names in dispute are as follows: <www.bundesjustizministerium.com>, <www.bundesjustizministerium.net>, <www.bundesjustizministerium.org>, <www.bundesinnenministerium.biz> and <www.verfassungsschutz.biz>.

The Registrar with whom the five domain names are registered is Signature Domains Inc. of 4021 Laguna Street, Miami, Florida 33146 USA.

 

3. Procedural History

The Complaint was received by the Center on February 1, 2002, identifying the Respondent as RJG Engineering Inc.

On February 6, 2002, a request for verification of the domain names was made to Signature Domains Inc. which confirmed that all five domain names were registered in the name of RJ Engineering Inc. with an administrative contact and technical contact named as Gerhard Lauck.

On February 15, 2002, the Complaint and the commencement of the administrative proceeding was notified to the Respondent by the Center by email, post and by fax. The Panel has seen evidence of these communications with the Respondent.

No Response having been received by the due date of March 7, 2002, Notification of Respondent's Default was given by email to the Respondent. No further communication having been received from the Respondent, an administrative panel was appointed on March 25, 2002, consisting of a Sole Panelist Mr Clive Duncan Thorne, with a projected decision date of April 9, 2002.

The Panelist has submitted a Statement of Acceptance and Declaration of Impartiality and Independence. The Panel understands that payment of the due fees has been properly made by the Complainant.

 

4. Factual Background

According to the Complainant "bundesjustizministerium" is the abbreviation for the German Federal Ministry of Justice. The Ministry of Justice is an authority of the Republic of Germany. The Republic of Germany has not registered marks but has common law service mark rights to the name "bundesjustizministerium". According to the Complainant, the word is well known in Germany to designate the "Ministry of Justice". The Ministry of Justice renders its services, such as providing public information, under these names.

The same apparently applies in respect of "bundesinnenministerium" and "verfassungsschutz". "Bundesinnenministerium" is an abbreviation for the Federal Ministry of the Interior. "Verfassungsschutz" is an abbreviation for the Office of the Defence of the Constitution which is a department of the Ministry of the Interior.

The Complainant asserts that all "involved" notations of "bundesjustizministerium", "bundesinnenministerium" and "verfassungsschutz" are used in the course of trade. They rely upon a previous Administrative Panel decision apparently involving the same parties (WIPO Case No. D2001-1401) in support of this. By way of evidence, they indicate that the Federal Ministry of Justice, the Federal Ministry of the Interior and the Office of the Defence of the Constitution publish books both free of charge and for money. The Office of the Defence of the Constitution also apparently sells used staff and official cars.

The Complainant submits that as a result of this trading activity the abbreviations "bundesjustizministerium", "bundesinnenministerium" and "verfassungsschutz" comply with the standards of Section 4 No. 2 German Trade Mark law which is authority to the effect that service and trade mark rights can be established not only by registration, but also by active use in public.

In the absence of contrary evidence from the Respondent, the Panel is prepared to accept the Complainant's submissions as to service and trade mark use, and to find that the Complainant has unregistered service mark and trade mark rights in Germany.

The history of this complaint starts with WIPO Case No. D2001-1401 where the panel decided that the domain name <www.bundesinnenministerium.com> (among others) should be transferred to the Complainant. According to the Complainant the Respondent changed the domain name and uses currently <www.bundesinnenministerium.biz>. The domain name <www.bundesinnenministerium.biz> leads to the web-site exhibited at Annexe 11 to the Complaint which is a web-site carrying an association with the Nazi Party. It is described as a secondary web-site with an invitation to visit the main web-site <www.nazi-lauck-nsdapao.com>. Similarly, the web-sites <www.bundesjustizministerium.org>, <www.bundesjustizministerium.net>, and <www.bundesjustizministerium.com>, lead to web-sites, exhibited at Annexes 12, 13 and 14, which refer to the relevant web-sites coming soon and state; "Welcome to your own internet domain! Our web-site will be on-line soon. Thank you for your patience while we build our site. Please visit us again."

The domain name <www.verfassungsschutz.biz> seems not to be used. The Complainant speculates that the Respondent will replace "bundesinnenministerium" by "bundesjustizministerium" or "verfassungsschutz" as soon as <www.bundesinnenministerium.biz> is cancelled or transferred to the Complainant. The Complainant submits that the Respondent has created a pool of "illegal domain names" relying upon German government notations, so that if one of the domain names is ordered to be transferred or cancelled, the Respondent will use the next one to mislead internet traffic.

 

5. The Complainant’s Contentions

In order to succeed in its request for an order to transfer the domain names to the Complainant, the Complainant has the burden of proof of ensuring that each of the elements set out in paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy") are present. These are as follows:

(i)The Respondent's domain names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;

(ii)The Respondent has no rights or legitimate interests in respect of the domain names;

(iii)The Respondent's domain names have been registered and are being used in bad faith.

The Panel proceeds to deal with each of these in turn.

(i)The Respondent's domain names are identical or confusingly similar to a trade mark or service mark in which Complaint has rights

The Panel has accepted that the Complainant has unregistered service and trade mark rights in the marks "bundesjustizministerium", "bundesinnenministerium" and "verfassungsschutz".

It is clear that these marks are identical to the domain names registered by the Respondent.

The Panel therefore finds for the Complainant under this head.

(ii)The Respondent has no rights or legitimate interests in respect of the domain names

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names, and points out that the Respondent does not conduct any bona fide business, but rather the opposite is true. It is clear that the use of "bundesinnenministerium" in combination with .com, .net or .org divert to the web-site of a Nazi group as can be seen from Annexes 6 and 7 to the Complaint. These web-sites are operated by Gerhard Lauck who, as indicated at Annexe 8, describes himself as President of the Respondent.

There is no evidence to the contrary from the Respondent. The Panel accepts the Complainant's contentions, and that the Complainant has shown that the Respondent has no rights or legitimate interests in respect of the domain names.

(iii)The Respondent’s domain names are registered and are being used in bad faith

The Complainant asserts that the Respondent has registered all disputed domain names in bad faith, and that they will be used in bad faith if the Respondent starts to use the domain names. In summary the Complainant asserts that the Respondent has registered the disputed domain names with the intent to deceive internet users and mislead internet traffic meant for the Ministry of Justice or Ministry of Interior or Office of the Defence of the Constitution to a Nazi home page. The use of a Nazi web-site is apparently a criminal offence according to German law.

The Complainant further asserts that the Respondent by referring to the fact that the domain names will probably only be working for a short time is contemplating the likelihood of the domain names being transferred.

In the Panel's view the Complainant has succeeded in showing bad faith. The Complainant's rights in the marks are quite clear and refer to the German government entities. There can be no justification for these to be used for other purposes let alone link with a Nazi web-site. In the case of the names <bundesjustizministerium.org>, <bundesjustizministerium.net>, <bundesjustizministerium.com> and <verfassungsschutz.biz> the Panel takes the view that even though these names may not be currently used, the Respondent has an intention to use them for the purposes of creating a link with the Nazi web-sites, and that therefore use of all the domain names in contention is in bad faith.

Accordingly the Panel finds that the Respondent has registered and is using the domain names in bad faith.

It follows that the Complainant has succeeded in its complaint.

 

6. Decision

The Complainant requests that the domain names: <www.bundesjustizministerium.com>, <www.bundesjustizministerium.net>

<www.bundesjustizministerium.org>, <www.bundesinnenministerium.biz>, <www.verfassungsschutz.biz> be transferred to the Complainant. The Panel finds for the Complainant and orders that the domain names: <www.bundesjustizministerium.com>, <www.bundesjustizministerium.net>, <www.bundesjustizministerium.org>, <www.bundesinnenministerium.biz>, <www.verfassungsschutz.biz> should be transferred from the Respondent to the Complainant.

 


 

Clive Duncan Thorne
Sole Panellist

Dated: April 9, 2002

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2002/d2002-0110.html

 

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