ADR Center for .eu attached to the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (Czech Arbitration Court)
Panel Decision
§ B12 of the .eu Dispute Resolution Rules (ADR Rules)
Case No.: 03202 Time of Filing: 2006-10-02 10:38:10 Administrative Contact: Josef Herian Complainant Name: Studienkreis GmbH, F. Dahlmanns Complainant's Authorized Representative Name: Wenzel & Kalkoff, Maria Wurm Respondent Name: Cervos Enterprises Ltd., Andreas Constantinou Respondent's Authorized Representative Name: Domain Name(s): STUDIENKREIS Other Legal Proceedings English summary of the decision: English summary of this Decision is hereby attached as Annex 1 Factual Background
2. The Complainant is, and has been for several years, the proprietor of numerous trademark registrations for the word "Studienkreis", including, among others, registrations in Germany, Austria, Benelux, Italy, Czech Republic, Spain and France.
3. Further, the Complainant holds 456 domain names containing the word "Studienkreis".
4. The Respondent has not responded to the Compaint.Parties’ Contentions
(a) The Complaint is based on Art. 21 (1) a) and b) of the Regulation (CR EC 874/2004).
(b) The domain name in issue is identical and/or confusingly similar to trademarks registered with the Complainant.
(c) Complainant believes that the domain name was registered without legitimate interest in the domain name (reference to Art. 21 (1) (a) of the Regulation).
(d) Because of the well-known trademark "Studienkreis" of the Complainant, it is not possible to use the domain name in issue without any deception of the consumer.
(e) The contested domain name points to a website generated by the Company "Sedo Parking". This is a domain name parking service where the Registrant will participate with a fixed amount on each click on the presented links on the website. No services or products which refer to "Studienkreis" are offered by the Registrant.
(f) The Registrant does not use the term "Studienkreis" as his company name. Complainant also searched for further rights and/or legitimate interest and asserts that rights or legitimate interest according to Art. 21 (2) of the Regulation could not be found.Discussion and Findings
" A registered domain name shall be subject to revocation, using an appropriate extra-judicial or judicial procedure, where that name is identical or confusingly similar to a name in respect of which a right is recognised or established by national and/or Community law, such as the rights mentioned in Article 10(1), and where it:
(a) has been registered by its holder without rights or legitimate interest in the name; or
(b) has been registered or is being used in bad faith."
2. Paragraph B.10(a) of the ADR rules provides that:
In the event that a Party does not comply with any of the time periods established by these ADR Rules or the Panel, the Panel shall proceed to a decision on the Complaint and may consider this failure to comply as grounds to accept the claims of the other Party.
3. However, this does not mean that the Complainant is entitled to a default judgment in a case, such as this, where no Response is filed. As paragraph B.11(d) of the ADR Rules makes clear, it is for the Complainant to prove that the requirements of Article 21(1) of the Regulation are satisfied.
4. The panel therefore deals with each of the three constituent parts of Article 21(1) of the Regulation in turn:
IDENTICAL OR CONFUSINGLY SIMILAR DOMAIN NAME
5. The Complainant has asserted that it is the proprietor of (and has provided details of) numerous registered trademarks in the name STUDIENKREIS. The Complainant is furthermore proprietor of numerous domain names containing the word STUDIENKREIS.
These assertions are not contradicted by the Respondent.
The Complainant has, therefore, satisfied the requirements of the first paragraph of Article 21(1).
NO RIGHTS OR LEGITIMATE INTERESTS
6. The Complainant has provided a description of the use of the relevant name and the domain name by the respondent; and expressly asserted that in the circumstances described the respondent has no legitimate interest in the name. Therefore, the Complainat has - prima facie - proven that the Respondent has no rights or legitimate interests in the domain name in issue.
These assertions are not contradicted by the Respondent.
In the absence of any submission on the issue from the Respondent, the Complainant has therefore satisfied the requirements of Article 21(1)(a). Because Complainant needs to show either
- a lack of rights or legitimate interest on the part of the Respondent
OR
- bad faith registration or use and given the finding on rights and legitimate interests set out above it is not necessary in this case to go on to consider the Complainant’s assertions in relation to bad faith registration or use.Decision
the domain name STUDIENKREIS be transferred to the ComplainantPanelists
- Friedrich Kurz
Date: 2006-12-27 Annex 1
The Complainant maintained that it was the proprietor of, inter alia, various European trade mark rights incorporating or comprising the word STUDIENKREIS.
Complainant asserted that there was no obvious connection between the Respondent and the STUDIENKREIS name. The Respondent did "park" the domain and did not sell STUDIENKREIS branded products.
The Respondent failed to file a Response
The Panel held:
(1) The Complainant had managed to prove - prima facie - to the Panel that the requirements of Article 21 of the Regulation were satisfied in this case.
(2) That the Complainant has managed to make out a prima facie case that the Respondent had no legitimate rights or interests in the Domain Name.
(3) Given the Panel’s finding on the question of rights and legitimate interests, it was not necessary to address the Complainant’s allegation of bad faith registration. The Complainant had satisfied the requirements of Article 21 of the Regulation.
(5) The Complainant, being a German registered company, also satisfied the criteria for eligibility for a .eu TLD set out in Article 4(2)(b) of regulation (EC) No. 733/2002.
Accordingly, the Panel ordered the transfer of the Domain Name to the Complainant.