Logged on as Anonymous
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.: 04970 Time of Filing: 2008-03-12 09:02:36 Administrative Contact: Tereza Bartošková Complainant Name: H.Vollmer GmbH, Günther Vollmer Complainant's Authorized Representative Name: Goldberg Rechtsanwälte, Alexander Goldberg Respondent Name: Zheng Qingying Respondent's Authorized Representative Name: Domain Name(s): HEITRONIC Other Legal Proceedings English summary of the decision: English summary of this Decision is hereby attached as Annex 1 Factual Background
The Respondent in this proceeding is Zheng Qingying based in London, Great Britain.
The disputed domain name is “heitronic”.
The Complainant is the owner of the German trademark „heitronic“, No. DE 2100462 (Class No. 11) date of registration -14th June, 1996.
The Complainant is the owner of a Community trademark „heitronic“, No. 003503166 (Class No. 9 and Class No. 11) date of registration - 25th January, 2006 holding seniority in Germany (since 14th June, 1996), Benelux (since 22nd March, 2001), France (since 22nd March, 2001) and Austria (since 22nd March, 2001) (hereinafter both German and Community trademarks – the trademarks).
The Respondent is the current registrant of the domain name „heitronic“ holding the domain heitronic.eu, date of registration - 4th July, 2006.
The Complainant filed the complaint against the Respondent under the alternative dispute resolution rules of the Arbitration center for .eu attached to the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (hereinafter - ADR rules), claiming that the domain heitronic.eu should be transferred to the Complainant.Parties’ Contentions
The Complainant is the owner of the German trademark „heitronic“, No. DE 2100462 ( Class No. 11 - Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes), date of registration -14th June, 1996.
The Complainant is the owner of a Community trademark „heitronic“, No. 003503166 (Class No. 9 – Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing aparatus and Class No. 11 - Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes) date of registration - 25th January, 2006 holding seniority in Germany (since 14th June, 1996), Benelux (since 22nd March, 2001), France (since 22nd March, 2001) and Austria (since 22nd March, 2001) (hereinafter both German and Community trademarks – the trademarks).
The legal protection is ensured to the trademarks consisting of a word “heitronic”.
The Complainant requests the transfer of the domain name.
The Respondent failed to comply with the deadline indicated in the Notification of Commencement of ADR Proceeding for the submission of his response and with the further deadline indicated in the Notification of Respondent's default. Therefore, he has not produced any arguments or provided any evidence of any actual or contemplated right, legitimate interest or good faith use.Discussion and Findings
(a) it has been registered by its holder without rights or legitimate interests in the name; or
(b) it has been registered or is being used in bad faith.
The Complainant is the owner of both the Community trademark and German trademark „heitronic“. Thus the Panel finds that the disputed domain name is identical to the Complainant’s registered trademark as they both consist of the same word „heitronic“.
The complainant holds two domain names containing the word „heitronic“ – heitronic.de and heitronic.com. The Panel is not provided with the information about the date of registration of the mentioned domains, thus it can not be considered as evidence taking into consideration the eligibility of the registration of the disputed domain name by the Respondent.
With reference to the first element in Article 21(1) of the EC Regulation 874/2004, providing the demand of rights or legitimate interests in the domain name, the Panel finds that the Complainant has proved its rights on the name „heitronic“ within the meaning of Article 10 (1) of the Regulation.
Article 10 (1) provides that holders of prior rights recognised or established by national and/or Community law and public bodies shall be eligible to apply to register domain names during a period of phased registration before general registration of. eu domain starts.
"Prior rights" shall be understood to include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works.
On the contrary, the Complainant provided that the Respondent has no rights or legitimate interest in the disputed domain name basing on the grounds when legitimate interest may be demonstrated lied down in Article 21(2) of the EC Regulation 874/2004.
With reference to the right or legitimate interest, Article 21 (2) of the Regulation 874/2004 states that a legitimate interest may be demonstrated where:
(a) prior to any notice of an ADR procedure, the holder of the domain name has used the domain name or a name corresponding to it in connection with the offering of goods or services or has made demonstrable preparation to do so;
(b) it has been commonly known by the domain name;
(c) it is making a legitimate and non-commercial or fair use of the domain name, without intent to mislead consumers or harm the reputation of a name in which a right is recognised or established by national and/or community law.”
Regarding the second element that the domain name is registered or is being used in bad faith, the Complainant referred to the ground lied down in Article 21(3) of the EC Regulation 874/2004 providing that bad faith has been demonstrated as the Respondent has registered the domain name on the purpose to sell it. The Complainant provided the Panel with the evidence that the Respondent proposed to sell the domain name on the website (an advertisement on the website www.escrow.onlyone.com.hk/?domain=heitronic.eu&ref=heitronic.eu).
The Panel considers that the Complainant has established a prima facie evidence of the Respondent’s bad faith, as the Respondent failed to deny or contest the Complainant’s claims as well as failed to present any evidence to the contrary. The Panel therefore concludes that the Respondent is in default and thus has not proved any right or legitimate interest and has registered the domain name in bad faith.
In this case the Complainant requests that the contested domain name would not only be revoked but also transferred to it. In such a case the Complainant must meet the general eligibility criteria to be a registrant of a domain name set out in Article 4(2)(b) of Regulation (EC) No 733/2002 of the European Parliament and of the Council of 22 April 2002 on the implementation of the .eu Top Level Domain.
To satisfy those general eligibility criteria the Complainant must be one of the following:
1. an undertaking having its registered office, central administration or principal place of business within the European Community;
2. an organisation established within the European Community without prejudice to the application of national law; or
3. a natural person resident within the European Community.
The Complainant, being a company registered under German law, satisfies the eligibility requirement for .eu domain name registrations pursuant to Article 4(2)(b)(ii) of Regulation (EC) No. 733/2002.Decision
the domain name HEITRONIC be transferred to the ComplainantPanelists
- Gediminas Pranevicius
Date: 2008-07-11 Annex 1
As the Complainant has satisfied the eligibility requirement for .eu domain name registrations pursuant to Article 4(2)(b)(ii) of Regulation (EC) No. 733/2002, the Panel decides that the disputed domain name should be transferred to the Complainant.