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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

CadLine Kft. v. Organellum Bt./Mitnyik Laszlo

Case No. D2007-0104

 

1. The Parties

The Complainant is CadLine Kft., of Hungary, represented by S.B.G.& K. Law Firm, Hungary.

The Respondent is Organellum Bt./Mitnyik Laszlo of Hungary.

2. The Domain Name and Registrar

The disputed domain name <archlinexp.com> is registered with CSL Computer Service Langenbach GmbH dba Joker.com.

3. Procedural History

The Complaint was filed with and received by the WIPO Arbitration and Mediation Center (the “Center”) on January 26, 2007. On January 29, 2007 and February 16, 2007, the Center transmitted by email to CSL Computer Service Langenbach GmbH dba Joker.com a request for Registrar verification in connection with the domain name at issue. On January 30, 2007, and February 16, 2007, CSL Computer Service Langenbach GmbH dba Joker.com transmitted by email to the Center its verification response confirming that the domain name <archlinexp.com> is registered by the Respondent. The registrar also confirmed that Mitnyik Laszlo is also the administrative and technical contact. The Center verified that 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 February 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 11, 2007. The Response was filed with the Center on March 11, 2007.

The Center appointed Zoltan Takacs as the sole panelist in this matter on March 21, 2007. 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.

The language of the proceeding is English.

 

4. Factual Background

The Complainant in this proceeding, CadLine Kft. is a limited liability company incorporated in Hungary in 1991, whose registered activities among others include business and management consultancy activities, software consultancy and supply, data processing and data base activities. The Complainant holds exclusive rights in both ARCHLINE and ARCHLINE.XP trademarks, registered with the World Intellectual Property Organization, ARCHLINE with priority of December 8, 1995, and ARCHLINE.XP with priority of December 21, 2001. Both trademarks protect software of Class 9 under common classification of the Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks.

The Respondent in this proceeding is Organellum Bt./Mitnyik Laszlo. Organellum Bt. is a Hungarian limited partnership, founded in 2001, whose registered activities among others include wholesale of computers and software, hardware consultancy, publishing of software, data processing

The disputed domain name <archlinexp.com> was created on January 7, 2002.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the domain name <archlinexp.com> is confusingly similar to its ARCHLINE and identical to its ARCHLINE.XP trademarks.

The Complainant further alleges that the Respondent never used the domain name at issue, nor made any demonstrable preparations to use the disputed domain name or any name corresponding to it either non-commercially or in a fair manner and that the Respondent has never been known by the domain name subject to this proceeding.

The Complainant asserts that the domain name was originally registered by its Austrian business partner for preventive reasons, with a provision later to be transferred to the Complainant. The Complainant states that at the time of the transfer of the domain name at issue Mitnyik Laszlo was a minority owner of the Complainant and was acting solely as contact person. The Complainant terminated Mitnyik Laszlo’s employment contract with effect of November 28, 2006, two days following the transfer of the domain name to the Respondent. The Complainant claims that the domain name at issue was transferred from the Complainant to the Respondent through ‘fraud’, as Mitnyik Laszlo abused his administrative status and fraudulently transferred the name to his wife’s company. The Complainant contends that this, which conduct excludes the possibility of the Respondent having any right or legitimate interest in the disputed domain name.

The Complainant finally contends that the Respondent registered and is using the disputed domain name in bad faith, mainly in order to disrupt the business of the Complainant. The Complaint states that although the website of the domain name at issue displays information about Complaint’s business activities , the Respondent is in full control of the domain name and has the power to transfer and/or redirect the website, or make it unavailable at any time.

The Complainant requests that the disputed domain name be transferred from the Respondent to the Complainant.

B. Respondent

In its response, the Respondent disputed the Complainant’s assertions, alleging that it never owned the disputed domain name. The Respondent claims that the domain name at issue has been owned by Mitnyik Laszlo, and that Organellum Bt. was his employer at the time the transfer of the disputed domain name was completed.

According to its response, Organellum Bt. requested Mitnyik Laszlo to clarify the situation about the circumstances concerning the domain name at issue, and has cited his statement in its defense. Mitnyik Laszlo confirmed that at the time when he was employed by the Complainant, he was not only acting as administrative, technical and billing contact for the domain name, but he apparently also owned the domain name. When his employment was terminated by the Complainant, he requested the registrar to update his personal employment information in the register, which modification in his view did not affect the ownership of the domain name <archlinexp.com>. According to Organellum Bt., Mitnyik Laszlo was prepared to transfer the domain name <archlinexp.com> to the Complainant.

For all the above reasons, the Respondent requests that this administrative proceeding be terminated.

 

6. Discussion and Findings

It is undisputed that at the time of creation of the domain name at issue (January 7, 2002), Mitnyik Laszlo was one of Complainant’s minority partners and also the administrative, technical and billing contact for the domain name. Mitnyik Laszlo never had the right to sign and/or execute any documents for and on behalf of the Complainant. It is undisputed that shortly after the registration of the domain name by IT-Concept EDV-Dienstleistung GmbH, the original registrant transferred the <archlinexp.com> domain name to the Complainant.

Based on the evidence, this Panel believes that there is a clear relation between Mitnyik Laszlo and Organellum Bt. In addition, in its verification response to the Center, the Registrar confirmed that the domain name in dispute was registered by Mitnyik Laszlo (owner) and Organellum Bt. (organization). For the purpose of these proceedings, the Panel will consider both Mitnyik Laszlo and Organellum Bt. as Respondent.

The Merits of the Case

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(1) 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

(2) That the respondent has no rights or legitimate interests in respect of the domain name; and

(3) That the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The domain name at issue <archlinexp.com>is confusingly similar to both marks in which the Complainant has trademark rights, ARCHLINE and ARCHLINE.XP. In case of ARCHLINE.XP, the disputed domain name wholly incorporates this trademark of the Complainant and the Panel finds that the first element of the Policy is successfully established.

B. Rights or Legitimate Interests

The Complainant has alleged that the Respondent has no rights or legitimate interests in the disputed domain name. It appears that the Complainant never authorized the Respondent to register and hold the domain name at issue.

The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests. This shifts the burden to the Respondent to come forward with evidence of such rights or interests. The Respondent’s contentions in the Panel’s view are not sufficient to establish any rights or legitimate interest in the domain name <archlinexp.com>.

Under paragraph 4(c) of the Policy, respondents may demonstrate their rights or legitimate interests in a disputed domain name by showing any of the following circumstances in particular but without limitation:

(i) their use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with bona fide offering of goods or services before any notice to them of the dispute, or

(ii) they (as individuals, businesses, or other organizations) have been commonly known by the domain name, even if they have acquired no trademark or service mark rights, or

(iii) They are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Panel is of the view that the Respondent did not submit or referred to any circumstance, evidence which might indicate the Respondent’s meeting of any of the circumstances set for in paragraph 4(c) of the Policy, or any other circumstances that could establish the Respondent’s rights or legitimate interests in the domain name at issue.

Therefore that Panel finds that the second element of the Policy has been established.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists the circumstances, in particular but without limitation, which, if found by the Panel, shall be evidence of the registration and use of the domain name in bad faith.

Paragraph 4(b)(iii) of the Policy provides that there is evidence of bad faith registration and use, where a respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor. It is undisputed that Mitnyik Laszlo, the former employee of the Complainant and the current employee of Organellum Bt. around the time the Complainant terminated his contract of employment changed the registration details of the domain name. In fact, Mitnyik Laszlo has admitted that he modified the registration details of the domain name around the time his employee status was terminated by the Complainant and he started working for Organellum Bt. A comparison of the business activities of the Complainant and the Respondent suggests that these can be considered as competitors.

The foregoing does not indicate any bona fide conduct on the side of the Respondent.

As a matter of fact there is a strong reason for this Panel to believe that all this was not accidental, and that Mitnyik Laszlo knowingly and deliberately abused his position with the Complainant to record himself and his new organization (Organellum Bt.) as the registrant of the domain name at issue. In light of the foregoing, the Panel finds that the domain name was registered and used in bad faith.

7. Decision

Accordingly, pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <archlinexp.com> be transferred to the Complainant.


Zoltan Takacs
Sole Panelist

Dated: April 4, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0104.html

 

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