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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Apax Partners Worldwide LLP v. Styling You HB

Case No. D2007-0147

 

1. The Parties

The Complainant is Apax Partners Worldwide LLP, of London, United Kingdom of Great Britain and Northern Ireland, represented by SJ Berwin & Co., United Kingdom of Great Britain and Northern Ireland.

The Respondent is Styling You HB, c/o Finno Furre, of Malmц, Sweden.

2. The Domain Names and Registrar

The disputed domain names <apax-watch.com> and <stop-apax-partners-fraud.com> are registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 2, 2007. On February 6, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain names at issue. On February 7, 2007, 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 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 February 27, 2007. 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 March 9, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 29, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 30, 2007.

The Center appointed Tobias Zuberbьhler as the sole panelist in this matter on April 5, 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.

 

4. Factual Background

The Complainant is a global private equity group advising funds totaling USD 20 billion around the world.

The Complainant and affiliated companies within the Complainant's group are the registered owners of various national and international APAX word trademarks in the following classes of goods and services: 16, 35, 36, 41 and 42. Apax Partners Ltd, another company of the Complainant's group, has also registered APAX PARTNERS as a community trademark in class 36.

The Complainant is the owner of various domain names incorporating the APAX and APAX PARTNERS trademarks.

In 2004, the Complainant acquired a 49% financial interest in a German company called LR Health Systems GmbH (“LR Health”). LR Health is involved in the perfume, aloe vera, wellness and cosmetics business. Its products are sold directly to members of the public by around 250,000 independent distributors in 27 countries.

The Respondent is a former distributor for LR Health. The Respondent entity, Styling You HB, appears to comprise both Mr. Finno Furre and his mother (for convenience referred to hereafter simply as the “Respondent”). It would appear that LR Health terminated this distributor relationship in 2006. After LR Health terminated the distribution agreement with the Respondent on or around December 20, 2006, the Respondent complained to the Complainant by e-mail of December 22, 2006 about a change in the distributors’ bonus system and demanded a payment of € 3 million if the new system was not abolished. The payment was to consist of “€2.000.000 for taking over my distributor number, €800.000 in lost inheritance for my son Finno Furre and his wife […] (who are losing their right to take over my business […]) and €200.000 for the pain and suffering my family has been put through”. The Respondent followed up by e-mail of December 28, 2006 stating that the termination of Respondent’s distribution agreement could lead to a possible media scandal in Scandinavia and asking LR Health “to take charge of the situation before it reaches all media organizations in Europe”. The Respondent attached two draft press releases and stated that they “are fully preparing going live with the following web-sites (…) ‘ww.Stop-Apax-Partners-Fraud.com’ and ‘www.Stop-LR-Cheating.com’. The email continued to state that “if you are interested in avoiding this scenario playing out, have a look at the counter offer and get back to Mrs. Irene Furre […] or myself Mr. Finno Furre immediately”.

In a letter dated January 18, 2007 from the Norwegian counsel of the Respondent, the threat to activate the website content of the disputed domain names was reiterated should the Complainant refuse to agree to a settlement in form of payment of € 3 million by January 26, 2007 in the ongoing dispute between LR Health and the Respondent.

The domain names in dispute were registered on December 22, 2006. The website to which both domain names resolve appears to have been activated on January 22, 2007.

 

5. Parties’ Contentions

A. Complainant

The Complainant’s business and the APAX name are well known. The Complainant is the registered owner of various word and device trademarks which incorporate the APAX and APAX PARTNERS trademarks.

Confusing similarity: As to the <apax-watch.com> domain name, the word “watch” is a neutral and/or descriptive term. Its addition to the Complainant’s APAX trademarks does nothing to deflect the impact of the marks on the Internet user. In particular, in the financial services industry, in which the Complainant operates, it is usual to “watch” financial markets and investment opportunities. Internet users could therefore easily misapprehend the domain name <apax-watch.com> to belong or to be connected to the Complainant believing this to be a news or financial market information site. Regarding the <stop-apax-partners-fraud.com>, the addition of the words “stop” and “fraud” to the APAX PARTNERS trademark does nothing to deflect the impact of the mark on the Internet user. Decisions under the Policy show that Panels have routinely found confusing similarity where the domain name in issue incorporates a well-known mark and merely adds a generic or slang term.

No rights or legitimate interests: In the circumstances, it is abundantly clear that the Respondent cannot have any rights or legitimate interest in respect of either of the domain names in issue. The Complainant has not authorized the Respondent to use its registered trademarks. Further, the Respondent is neither using nor making preparations to use the domain names in connection with a bona fide offering of goods or service. The Respondent has not been commonly known by the domain names or acquired any trademark rights in them. The sole purpose of the registration of the domain names was to tarnish the APAX and APAX PARTNERS trademarks and plainly to disrupt the Complainant’s business.

The domain names incorporate the Complainant’s trademarks although the Complainant is not a party to the dispute between LR Health and the Respondent. Rather the Respondent has sought to pressure the parties to the dispute between LR Health and Mrs. Irene Furre by trying to harm the business of one of the principal shareholders in LR Health, i.e. the Complainant.

Bad faith: At the time of registering the domain names in issue, the Respondent plainly intended to use the domain names in a campaign of vilification against the Complainant to cause the Complainant disruption and damage and to put pressure on LR Health in its ongoing negotiations between LR Health and the Mrs. Furre. The Respondent has continued to use both contested domain names in bad faith after their registration.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:

- that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark 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.

Paragraph 4(c) of the Policy sets out circumstances which, in particular but without limitation, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests in the domain names at issue.

Paragraph 4(b) of the Policy sets out circumstances which, again 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.

A. Identical or Confusingly Similar

Previous WIPO Panelists have considered the question of whether domain names combining a trademark with a negative term are confusingly similar to the trademark. The majority view is that a domain name consisting of a trademark and a negative term is confusingly similar to the Complainant’s mark (see Overview of WIPO Panel Views on Selected UDRP Questions, section 1.3). A minority view holds that a domain name consisting of a trademark and a negative term is not confusingly similar because Internet users are not likely to associate the trademark holder with a domain name consisting of the trademark and a negative term (<walmartcanadasucks.com>, Wal-Mart Stores, Inc. v. wallmartcanadasucks.com and Kenneth J. Harvey, WIPO Case No. D2000-1104; <lockheedsucks.com> and <lockheedmartinsucks.com>, Lockheed Martin Corporation v. Dan Parisi, WIPO Case No. D2000-1015; <mclanenortheastsucks.com>, McLane Company, Inc. v. Fred Craig, WIPO Case No. D2000-1455; <fucknetscape.com>, America Online, Inc. v. Johuathan Investments, Inc., and AOLLNEWS.COM, WIPO Case No. D2001-0918).

Whichever view is adopted, the Panel in the present case on balance does not consider that the disputed domain name <stop-apax-partners-fraud.com> meets the test of confusing similarity with the Complainant’s trademarks under the first element of the Policy. The Panel notes in this respect the following factors. Although the Complainant claims that the APAX mark is well-known, no compelling evidence is presented to that effect. See e.g. PRL USA Holdings. v. Northbay Real Estate, Inc. and John Loxton, WIPO Case D2006-1394. Although none of these factors is dispositive by itself, the Panel notes also the location of the mark within the domain name (sandwiched between hyphens and the expressions “stop” and “fraud”), and the overall length of the domain name. Any distinctiveness that the APAX or APAX PARTNERS marks may have is, in the Panel’s view, in large measure obscured within the domain name.

The situation is different, however, with respect to the domain name <apax-watch.com>, which combines the APAX mark as the primary element with the generic term “watch”. The Panel accepts the Complainant's argument that in the financial services industry, in which the Complainant operates, it is usual to “watch” financial markets and investment opportunities. Internet users could therefore easily misapprehend the domain name <apax-watch.com> to belong or to be connected to the Complainant believing this to be a news or financial market information site.

Whether or not the domain name <apax-watch.com> in fact relates to a protest (“watchdog”) site does not change such finding. It is well established that the content of the website to which a domain name resolves is irrelevant to the evaluation of confusing similarity (Overview of WIPO Panel Views on Selected UDRP Questions, section 1.2).

In summary, the Complainant meets the requirements of paragraph 4(a)(i) of the Policy with regard to the domain name <apax-watch.com>, but not with respect to <stop-apax-partners-fraud.com>. Because the requirements of paragraph 4(a) of the Policy have to be fulfilled cumulatively, the examination of the <stop-apax-partners-fraud.com> domain name may stop here, and the following assessment will only relate to the <apax-watch.com> domain name.

B. Rights or Legitimate Interests

Legitimate interests in a domain name can be demonstrated, among others, if a respondent is “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” (paragraph 4(c)(iii) of the Policy).

The website to which the domain name <apax-watch.com> resolves appears to present itself as a protest site. Whether or not such use is legitimate, the circumstances of this particular case do not support a finding of legitimate interests. The available record indicates that the Respondent threatened to activate the website if the Complainant did not provide a € 3 million settlement payment. It cannot reasonably be argued that such conduct was “non-commercial and fair”. The domain name <apax-watch.com> was used to pressure the Complainant into a settlement. Any subsequent protest was tainted by the Respondent’s initial unfair use and its intent for commercial gain.

The Complainant has thus fulfilled the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the same reasons as discussed above, it follows that the Respondent has registered and is using the domain name <apax-watch.com> in bad faith. The domain name was apparently registered and is now seemingly being used to pressure the Complainant into a settlement. Such conduct cannot in the circumstances, whatever grievances the Respondent may have with the Complainant, be considered to be good faith for the purpose of the Policy. The Panel finds paragraph 4(a)(iii) of the Policy is fulfilled.

7. Decision

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 <apax-watch.com> be transferred to the Complainant.

The Complaint is denied with respect to the domain name <stop-apax-partners-fraud.com>.


Tobias Zuberbьhler
Sole Panelist

Dated: April 19, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0147.html

 

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