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and Mediation Center
V&S Vin & Sprit v. Young Nah
Case No. D2004-0961
1. The Parties
The Complainant is V&S Vin & Sprit, Stockholm, Sweden, represented by Cogent IPC AB, Sweden.
The Respondent is Young Nah, Pohang, GB, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <absolutbar.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2004. On November 15, 2004, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On November 16, 2004, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 23, 2004. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 25, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was December 15, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 16, 2004.
The Center appointed Kristiina Harenko as the sole
panelist in this matter on December 21, 2004. The Panel finds that it was properly
constituted. The Panel has submitted the Statement of Acceptance and Declaration
of Impartiality and Independence, as required by the Center to ensure compliance
with the Rules, paragraph 7.
4. Factual Background
The Complainant is a Swedish joint stock company that manufactures, imports and distributes alcoholic beverages. It is the owner of hundreds of ABSOLUT trademark registrations spread over more than hundred countries. A number of registrations relate to matters other than alcoholic beverages. “absolut” can be found in about 500 gTLDs and ccTLDs owned by the Complainant.
The Respondent registered its domain name <absolutbar.com>
on October 27, 2003. At that time, the Complainant has obtained protection for
its trademark ABSOLUT in more than 100 countries.
5. Parties’ Contentions
The Complainant’s sale of vodka under the trademark ABSOLUT began in 1979, in USA, and Sweden and other parts of Europe in 1980-1981. In 2001, in an article in Business Week August 6, ABSOLUT was reported to have been ranked by Interbrand as the 93rd most valuable asset in the world. The trademark has also been ranked as number 1 on Forbes’ list of Top Luxury Brands according to market performance. In legal terms, such as reflected in Article 6bis of the Paris Convention for protection of Industrial Property (“PC”), confirmed and extended by Articles 16.2 and 16.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), the status of a well-known trademark provides the owner of such a trademark with the right to prevent any use of the well-known trademark or a confusingly similar denomination in connection with any products or services, also those not limited to vodka.
a) Identity or Confusing Similarity
ABSOLUT is the dominant part of the domain name in issue, making it confusingly similar to the trademark ABSOLUT. The Complainant has registered ABSOLUT as a trademark and as a domain name worldwide. The addition of the suffix “bar” has no impact on the overall impression created by the dominant part of the name, “Absolut”. The likelihood of confusion includes an obvious association that there is some kind of commercial relation with the Complainant. If anything, the addition of the word “bar” rather strengthens the impressions that it is a domain name of the Complainant, since the Complainant is a major supplier of spirits to the countries all around the world. The domain name must be considered to be confusingly similar with the Complainant’s trademark
b) Rights or Legitimate Interests
The Respondent has no registered trademarks or trade
names corresponding to the domain name. The Respondent does not have any license
to use ABSOLUT trademark, nor is he a representative of the Complainant. ABSOLUT
is a famous trademark worldwide and an extremely valuable asset. In several
UDRP decisions it has been confirmed that the trademark ABSOLUT is well known
(see e.g. V&S Vin & Sprit AB v. Canal Prod Ltd, WIPO
Case No. D2002-0437, V&S Vin & Sprit AB v. Giovanni Pastore,
WIPO Case No. D2002-0926, V&S Vin
& Sprit AB v. Oliver Garcia, WIPO
Case No. D2002-1081). The Respondent cannot have been ignorant of the rights
held by the Complainant, when he applied for the Domain name in question. The
fact that the Respondent is using the Swedish word “absolut” in
an English context, clearly indicates and proves that the Respondent is trying
to sponge on the world famous trademark. Rights or legitimate interests cannot
be created where the user of the domain name at issue would not choose such
a name unless he was seeking to create an impression of association with the
Complainant (see Drexel University v. David Brouda, WIPO
Case No. D2001-0067).
c) Registration and Use in Bad Faith
The awareness of the trademark ABSOLUT is manifested the world over. Its value and goodwill cannot have been unknown to the Respondent when registration of the domain name took place. The Respondent has registered the world famous brand ABSOLUT in combination with a generic word that is closely connected to the business of the Complainant. This clearly suggests that the Respondent is very much aware of the brand and the business it relates to. This awareness is what has induced the Respondent to set up a site with links to other sites all related to alcohol, bars and spirits, some even selling products from competitors of the Complainant. The domain name is according to the print screen attached to the Complaint pointing to a web site that contains links to web sites with content related to drinks, alcohol, etc. None of the links are connected to ABSOLUT. There is no doubt that the word “absolut” in the domain name refers to the trademark of the Complainant. The title on the web site in the left corner is: Absolut Bar – Absolut Vodka Liquor. Even though the domain name was registered more than one year ago, this is the only use the Respondent has put the domain name to.
The Respondent has not responded to the Complainant’s
attempt to contact him. That the Respondent neglects to respond to cease and
desist letters has by the Panel been seen as one factor that indicates bad faith
registration (see Encyclospedia Britannica, Inc. v. Hohn Zuccarini and the
Cupcake, WIPO Case No. D2000-0330).
The phone and fax number of the Respondent were invalid so it was not possible
to contact the Respondent through these channels. It can also be an indication
of bad faith to state false contact information (e.g. Nintendo of America
Inc. v. Berric Lipson, WIPO Case No. D2000-1121).
The domain name is hosted by a company called TrafficZ.com,
which is dedicated to generating revenue from parked domains while providing
accurate metrics of each domain. It certainly must be the purpose of the Respondent
to intentionally trade off of the Complainant’s considerable good will
and value in the mark ABSOLUT and to divert traffic intended for the Complainant.
The Respondent is using the domain name in order to attract visitors and then
make money when the visitors click on the links on the site. The trademark ABSOLUT
is such a well-known and famous mark and so obviously connected with the Complainant
and its products, that its very use by someone with no connection to the Complainant
suggests an opportunistic bad faith. The Complainant refers to UDRP (Parfums
Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO
Case No. D2000-0226, Veuve Clicquot Ponsardin, Maison Fondйe en 1772
v. The Polygenix Group Co., WIPO Case
No. D2000-0163, SSL International PLC v. Mark Freeman, WIPO
Case No. D2000-1080, and Altavista Company v. Grandtotal Finances Limited
et. al., WIPO Case No. D2000-0848).
d) Remedy Requested
The Complainant requests that the domain name <absolutbar.com> be transferred to the Complainant.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Pursuant to Policy, Complainant must convince the Panel on the following three criteria:
(i) the domain name is identical or confusingly similar to a trademark in which it holds rights; and
(ii) Respondent has no right or legitimate interests in the domain name; and
(iii) The domain name was registered and used in bad faith.
A. Identical or Confusingly Similar
The dominant part of the domain name <absolutbar.com> comprises the word “Absolut”, which is identical to the registered trademark ABSOLUT, which has been registered by the Complainant as a trademark in several countries all over the world. The addition of “bar” to Complainant’s trademark ABSOLUT, being a well known trademark under the international legal framework, especially under the Paris Convention and TRIPS Agreement and of wide international reputation, not only for its core product vodka, does not overshadow the impact on observers of the element “absolut” as the dominant part and as the element that indicates a connection to the Complainant. The addition of the word “bar” rather strengthens the impression that it is a domain name of the Complainant, since the Complainant is a major supplier of spirits to the countries all around the world. Whether written ABSOLUT or absolut is of no consequence, due to the standard typography of domain names. Consequently, the domain name <absolutbar.com> is found to be confusingly similar to Complainant’s registered trademark ABSOLUT.
B. Rights or Legitimate Interests
The trademark ABSOLUT is well known throughout the world, at least wherever people drink spirits. It is therefore protected against all and any dilution as such trademarks are granted a general scope of protection.
The Respondent does not have any license to use the ABSOLUT trademark, nor is he a representative of the Complainant.
The Respondent has not replied to the Complainant’s contentions. The arguments by the Complainant, as summarized here above under 5A(b), supported by means of proof submitted by the Complainant, have convinced the Administrative Panel that the Respondent has not had, nor has, any rights or legitimate interest in respect of the domain name <absolutbar.com>.
C. Registered and Used in Bad Faith
At the time he registered the domain name, the Respondent could not have been ignorant about the trademark ABSOLUT, because of its worldwide reputation. The Respondent does not have any trademark rights of its own corresponding to the one in issue and no license or authorization from the Complainant to use such trademark. The Respondent has registered the world famous brand ABSOLUT in combination with a generic word that is closely connected to the business of the Complainant. This fact clearly proves that the Respondent is very much aware of the brand and the business it relates to. This is supported by the fact that the Respondent has set up a site with links to other sites all related to alcohol, bars and spirits, some even selling products from competitors of the Complainant.
The only use the Respondent has put the domain name
to, is the pointing of the name to a web site with the title Absolutbar.com
– Absolut Vodka Liquor and with links not related to ABSOLUT but to other
web sites, some marketing the products of competitors. The Respondent is using
the domain name in order to attract visitors and then make money when the visitors
click on the links on the site. The trademark ABSOLUT is such a well-known and
famous mark and so obviously connected with the Complainant and its products
that its very use in unconnected business, as in the present case, must be considered
what has been called “opportunistic bad faith”.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <absolutbar.com> be transferred to the Complainant.
Dated: December 31, 2004