{ "case_number": "CAC-ADREU-005126", "time_of_filling": null, "domain_names": [], "case_administrator": null, "complainant": [], "complainant_representative": null, "respondent": [], "respondent_representative": null, "factual_background": "The Complainant has requested transfer of the domain name to the Complainant by initiating ADR proceedings. \r\n\r\nThe Complainant, Avery Denninson Corporation, through its subsidiary Avery Denninson UK Ltd. (collectively, “Avery” or “The Complainant”), has successfully registered and has valid trademark rights on the word “AVERY” in connection with the bona fide offering goods and\/or services that have to do with graphic arts and stenography products ranging from writing instruments to paper, adhesive labels and graphic laminates. The said trademark registrations are protected in a wide range of jurisdictions throughout the countries of the European Union as well as in the United States. \r\n\r\nThe Respondent is Dotasterisk, Ltd. with physical location in London, Great Britain. According to the information retrieved from the WHOIS database, the Respondent registered the disputed domain name with deLink GmbH, a Registrar located in Germany, on April 7, 2008.\r\n\r\nThe Complaint was filed on July 15, 2008 and the Respondent failed to provide a Response to the Complaint.", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings which are pending or decided in relation to this dispute or the disputed domain name .", "discussion_and_findings": "First of all, the Panel notes that the Respondent is in default in the meaning of Paragraph B 10 (a) and (b) of the ADR Rules, which state that the Panel may consider the failure by the Respondent to comply with the time limits for filing a Response as grounds to accept the claims of the Complainant, and that the Panel shall draw such inferences from the default as it considers appropriate. \r\n\r\nAccording to Articles 21 (1) and 22 (11) of the Commission Regulation (EC) No 874\/2004 and Paragraph B 11 (d) (1) of the ADR Rules the Complainant bears the burden of proof in proving the following: \r\n(i) The domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law and; either \r\n(ii) The domain name has been registered by the Respondent without rights or legitimate interest in the name; or \r\n(iii) The domain name has been registered or is being used in bad faith. \r\n\r\nThe Panel would like to assert, before starting establishing whether the requirements of Paragraph B 11 (d) (1) apply, that, in deciding this dispute, account will not be given to the cited case law that the Complainant has provided and therefore not make use of precedent, especially one that is derived from a similar dispute resolution process like the UDRP.\r\n\r\nThe first requirement is that the domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law. The Panel finds as follows:\r\n\r\nThe Complainant is the legitimate proprietor of the trademark . In fact, the Panel is of the opinion that the Complainant holds very strong trademark rights on the term having valid trademark registrations in both the United States and Europe. Especially, with the trademark rights within the European Union, the Panel has to acknowledge that the Complainant registered these prior to the introduction of the Community trademark, which merely demonstrates the will of the Complainant to protect their trademark rights across the countries of the European Union. This, by itself, demonstrates to the Panel the strong trademark rights that the Complainant possesses and their willingness to protect these against potential infringers. Even though the mark does not fall within the category of the marks one might characterize strong or well-known, still the Panel accepts that is a strong trademark and known within the groups of businesses, individuals and entities that deal with graphic designing. \r\n\r\nThe Panel, therefore, accepts that the registration of the disputed domain name is similar to the trademarked term AVERY and can potentially confuse and\/or mislead consumers. The disputed domain name consists of two words: “avery” and “graphics”. Although the Panel should accept that this domain name is not identical per se to the Complainant’s trademark , still the addition of the word ‘graphic’ represents the kind of business of the Complainant and is not enough, according to the Panel, to distinguish it from the Complainant’s mark. It is almost inevitable that when consumers access the website , they will think that they are accessing a website affiliated with the Complainant. For these reasons, the Panel declares that the Complainant has satisfied the first of the requirements of paragraph 11 (d)(1)(i) of the ADR Rules and that the disputed domain name is confusingly similar to the Complainant’s mark. \r\n\r\nThe second requirement as per paragraph 11(d)(1)(ii) of the ADR Rules is that the domain name holder has no rights or legitimate interests in the disputed domain name.\r\n\r\nThe Complainant contends that through the disputed domain name , the Respondent promotes a business or an entity having to do with “European Identity”. They further contend that prior to this the domain name was being used in connection with a web site featuring a keyword list containing the terms “Avery Dennison”, “Avery”, “Self Adhesive Labels”, and the like which provided links to third parties’ websites that were in direct competition with the Complainant. Having not received a response from the Respondent, the Panel conducted their own research and the Respondent’s site is indeed promoting some sort of an “European Identity” business; however, the site is currently inactive, therefore, the Panel was not able to retrieve more information. Although the Panel has only the words of the Complainant that, at some moment in time, the website was potentially harming the Complainant’s rights, still and even without this assertion the Panel has to question the Respondent’s choice of this particular domain name . This domain name does not accurately represent a business named ‘European Identity’ and the choice of it raises concerns that the domain name holder did not mean to make a legitimate use of it. Currently, the website provides a link to what can only be presumed as the Respondent’s trademark right but the link is also inactive. Therefore, there is no evidence whatsoever presented to this Panel that the Respondent has ever used the work AVERY or GRAPHICS in any fashion. It is for these reasons that the Panel confirms that the Respondent has no right and\/or legitimate interests in the disputed domain name .\r\n\r\nFinally, the last requirement as per paragraph 11(d)(1)(iii) of the ADR Rules is that the domain name holder has registered and is using the domain name in bad faith.\r\n\r\nThe Complainant asserts that the Respondent is not a licensee or an authorized representative of the Respondent. Also the Complainant has provided evidence (Exhibit C: copy of demand letter) that they have contacted the Respondent seeking to resolve this dispute amicably; the Respondent once again failed to reply.\r\n\r\nThe Panel is of the opinion that the Respondent is acting in bad faith. If the Respondent were serious about their business they would have answered to the letters sent by the Complainant explaining the reasons behind the choice of the disputed domain name and the nature of their business. The Respondent failed to do so repeatedly. Moreover, according to the Complainant’s assertions, at some point in time, the Respondent was using the website to promote the goods of the Complaint to their competitors. \r\n\r\nTherefore, this Panel is of the opinion that the registration by the Respondent of the disputed domain name was not a random choice by the Respondent as it ‘graphically’ depicts the Complainant’s trademark and the nature of their business. Moreover, given the fact that the Respondent failed to respond to this complaint, the Panel is left with no choice but to take the assertions of the Complainant on board. The Respondent’s initial conduct of featuring through his web site a keyword list containing the terms “Avery Dennison”, “Avery”, “Self Adhesive Labels” demonstrates that the domain name was registered with the purpose of disturbing the business of the Complainant. This fact by itself demonstrates both bad faith registration and use and the Panel feels that there is no reason as to not accept the allegations of the Complainant (from the Panel’s own research the facts that the Complainant has presented are indeed correct and true, which means that the Complainant is acting in good faith and all the information that they have provided this Panel to consider should consequently be accurate and correct).\r\n\r\n\r\nBased on these facts, the Panel accepts that the Complainant has also satisfied the third element of paragraph 11(d)(1) and that the domain name has been registered and used in bad faith.", "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the domain name AVERYGRAPHICS be transferred to the Complainant.", "panelists": [ null ], "date_of_panel_decision": "2008-10-23 00:00:00", "informal_english_translation": "The Complainant, Avery Denninson Corporation, through its subsidiary Avery Denninson UK Ltd. (collectively, “Avery”) has requested transfer of the domain name to The Complainant by initiating ADR proceedings. \r\nThe Respondent, Dotasterisk, Ltd., with its physical location in London, UK, is in default.\r\nThe Complainant seeks a transfer of the disputed domain name from the Respondent to the Complainant in accordance with Paragraph B 11 (b) the .eu Alternative Dispute Resolution Rules (hereinafter “the ADR Rules”).\r\nThe Complainant has registered trademark rights in the mark in connection with graphic arts and stenography products ranging from writing instruments to paper, adhesive labels and graphic laminates.\r\nThe Complainant is further of the opinion that the mark has become directly associated with the Complainant’s goods and has acquired a secondary meaning to the customers conducting business with the Complainant.\r\nThe Complainant also contends that their use and registration of the name far precedes the Respondent’s registration of the domain name and for this reason the Respondent has no rights or legitimate interests in the domain name.\r\nThe Complainant also asserts that the Respondent has sought in the past to disrupt the business of the Complainant and this is an indication of bad faith.\r\nThe Respondent is in default.\r\nThe Panel, therefore, accepts that the registration of the disputed domain name is similar to the trademarked term and can potentially confuse and\/or mislead consumers.\r\nThere is no evidence whatsoever presented to this Panel that the Respondent has ever used the work AVERY or GRAPHICS in any fashion or in connection with any business.\r\nThis Panel is of the opinion that the registration by the Respondent of the disputed domain name was not a random choice by the Respondent as it ‘graphically’ depicts the Complainant’s AVERY trademark and the nature of their business – and this is bad faith.\r\nThe decision of the Panel is that the disputed domain name should be transferred to the Complainant.", "decision_domains": [], "panelist": null, "panellists_text": null }