WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rock im Park GmbH v. Rock Im Park Festival Wien / Klaus Schmidt
Case No. D2012-0956
1. The Parties
Complainant is Rock im Park GmbH of Würzburg, Germany, represented by Hogan Lovells International LLP, Germany.
Respondent is Rock Im Park Festival Wien / Klaus Schmidt of Vienna, Austria.
2. The Domain Name and Registrar
The disputed domain name <rockimpark.com> is registered with Hebei Guoji Maoyi (Shanghai) LTD aka Hebei International Trading (Shanghai) Co., Ltd dba HebeiDomains.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2012. On May 7, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 9, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 14, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 18, 2012.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on May 22, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 11, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 12, 2012.
The Center appointed Frederick M. Abbott as the sole panelist in this matter on June 28, 2012. 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.
At the request of the Panel, the Center transmitted Administrative Panel Procedural Order No. 1 (“Procedural Order No. 1”), dated July 10, 2012, to the parties, providing in relevant part:
The Panel has completed a preliminary review of the case file in this matter. Complainant has indicated that the disputed domain name was created on January 6, 2006, and has provided evidence of its registration of the ROCK IM PARK trademark in 2010.
The Panel invites Complainant to provide additional evidence regarding the date that this Respondent registered and/or acquired the disputed domain name... Thereafter, Respondent shall have a period … in which to respond to the Center regarding such additional evidence as may be provided by Complainant, and/or to provide its own evidence.
By email dated July 12, 2012, Complainant indicated that it had no additional evidence regarding the date at which Respondent acquired the disputed domain name. Complainant provided additional information concerning use in commerce in Austria and Germany of the ROCK IM PARK trademark prior to the date of registration of the disputed domain. Complainant referred to rights in its “‘unregistered’ brand” arising prior to registration of the disputed domain name. By email dated July 15, 2012, Respondent indicated that it registered the disputed domain name on January 6, 2006, and at that time had never heard of Complainant. Respondent stated it had not heard of Complainant until the present proceeding was initiated.
Following review of Complainant’s and Respondent’s submissions, the Panel requested and the Center transmitted Administrative Panel Procedural Order No. 2 (“Procedural Order No. 2”) to the parties by email of August 9, 2012. That Order providing relevant part:
The Panel requests additional elaboration from Complainant regarding the specific legal basis under German and/or Austrian law for the establishment of unregistered trademark rights such as would qualify ROCK IM PARK for such rights, as well as clarification regarding the date or dates at which Complainant considers such rights to have been established.
The Panel notes that Complainant’s registration for the ROCK IM PARK trademark in Germany is for a word and design (i.e., stylized) mark and that, by Complainant’s explanation, ROCK IM PARK in German has the meaning “rock in the park” in English. Such a phrase might be considered descriptive of rock concerts held in parks. The Panel requests Complainant to advise whether it applied for registration in Germany of the word trademark ROCK IM PARK (i.e., without stylized design) and, if so, the status of such application. The Panel is aware that Complainant successfully registered ROCK IM PARK as a word Community Trade Mark in 2010.
Complainant has a period … to provide the requested information, following which Respondent shall have in which to provide a response to Complainant’s additional submission, if any.
By email dated August 14, 2012, Complainant responded to Procedural Order No. 2 with references to provisions of German and Austrian law which it argued provide the basis for the establishment of unregistered trademark and commercial designation rights, and with factual references regarding public awareness of its alleged unregistered rights.
Respondent did not provide any response to Complainant’s submission.
4. Factual Background
Complainant is the owner of registration of the word and design trademark ROCK IM PARK on the register of the German Patent and Trademark Office (Deutsches Patent- und Markenamt), registration dated April 8, 2010 (applied for February 13, 2010), in international classes (ICs) 6, 9, 16, 18, 25, 32, 35, 41 and 43. The word and design mark includes stylized lettering and a circle with protruding lightning bolts using white, red and black colors. Complainant is owner of registration of the word Community Trade Mark ROCK IM PARK, registration dated October 12, 2010 (applied for February 12, 2010), in ICs 6, 9, 16, 18, 25, 32, 35, 41 and 43.
Complainant organizes and stages an annual rock music festival under the name ROCK IM PARK, asserting that it has done so in Munich, Germany beginning in 1995, and in Nürnberg, Germany (under the name “Rock am Ring”) since 1997. Complainant asserts that in recent years these festivals have attracted 60,000 to 70,000 attendees. Complainant indicates that these are the largest music festivals in Germany. The Wikipedia entry for “Rock am Ring and Rock im Park” (provided by Complainant) provides support for these claims.
Complainant has advertised a rock festival in Munich under the ROCK IM PARK name since 1995, including on television and advertising billboards. Complainant has registered and used the domain names <rock-im-park.com> and <rock-im-park.de> to host its “official” website for the rock festival, asserting that it registered and commenced using those domain names in 1997. Complainant has provided data that the official website received 1.8 million hits in 2001 and more than 16 million hits in 2006. Complainant indicates that prior to registration of the disputed domain name in 2006, the Rock im Park rock festival had been attended by more than 400,000 individuals. Complainant has further indicated that the Rock im Park festival was well known in Austria, and that (for example) more than 3,000 tickets were sold in Austria by its leading online ticket seller in 2005. Complainant indicates that the 2005 Rock im Park festival was broadcast live by MTV.
According to the Registrar’s verification, Respondent is the registrant of the disputed domain name. According to that verification, the record of registration of the disputed domain name was created on the date shown on the VeriSign WhoIs record. That date is January 6, 2006. Respondent has indicated that it registered the disputed domain name on that date, and Complainant has presented no evidence to the contrary.
At some stage, Respondent used the disputed domain name to direct Internet users to a link-farm parking page headed with the disputed domain name that generated links to “Classic Rock”, “Music Festival”, “Live Music”, “Heavy Metal”, “Rock Bands” and “Rockmusic” (the screenshot evidence provided by Complainant does not include a date).1 As of the date of the Panel’s preparation of this decision, the disputed domain name redirects Internet users to “www.festivalhopper.de” which opens to a webpage headed “Festivalhopper” that provides information (in German) and links to ticketing for a variety of music concerts, festivals and related events. There is a specific sub-page for events in Germany, as well as a sub-page for events in Europe. There is, for example, information regarding potential musical acts at the Rock im Park festival in Munich/Nürnberg for 2012 and 2013.
The registration agreement in effect between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, of which the Center is one, regarding allegations of abusive domain name registration and use. (Policy, paragraph 4(a)).
5. Parties’ Contentions
A. Complainant
Complainant asserts that it has registered the Community trade mark and German trademark ROCK IM PARK. Complainant has provided evidence of use of the trademark.
Complainant alleges that the disputed domain name is “virtually identical” to its trademark. Complainant argues that there is no doubt but that the disputed domain name is confusingly similar to the “trademarks and the trade name the Complainant has rights in”.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name. Complainant argues that: (1) Respondent has not used the disputed domain name for a bona fide offering of goods or services, and is not making legitimate noncommercial or fair use of the disputed domain name; (2) Respondent is not a representative or licensee of Complainant; (3) the disputed domain name is neither identical nor similar to Respondent’s name; and (4) Respondent was not commonly known by the name “rockimpark” prior to registration of the disputed domain name. Complainant alleges that because it has made out a prima facie case of Respondent’s lack of rights or legitimate interests, the burden shifts to Respondent to demonstrate rights or legitimate interests.
Complainant alleges that Respondent registered the disputed domain name in bad faith because: (1) the rock festival Rock im Park has taken place annually in Germany since 1995 and is one of the largest rock music festivals in the world, and Respondent must have known of Complainant’s trademark and business name when it registered the disputed domain name; (2) registering a disputed domain name with knowledge of a trademark is evidence of bad faith; (3) because the ROCK IM PARK trademark is composed of words of the German language meaning “rock in the park” in English, a non-German who is not aware of the festival would never have chosen this domain name; (4) “even though the Complainant did not have any registered trademarks yet at the time of registration of the disputed domain name on 6 January 2006, it cannot be doubted that the domain name was registered in bad faith since the festival ‘Rock im Park’ was already well known at that time”. In this regard, Complainant refers to Stoneygate 48 Limited and Wayne Mark Rooney v. Huw Marshall, WIPO Case No. D2006-0916, for the proposition, “In certain situations, when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights, bad faith can be found. This often occurs after a merger between two companies, before the new trademark rights can arise, or when the respondent is aware of the complainant’s potential rights, and registers the domain name to take advantage of any rights that may arise from the complainant’s enterprises”.
Complainant argues that the disputed domain is being used in bad faith because: (1) Respondent is using Complainant’s trademark in the disputed domain name for commercial gain to attract Internet users to Respondent’s website by creating a likelihood of confusion as to Complainant acting as a source, sponsor, affiliate or endorser of Respondent’s website; (2) Respondent was aware of the well-known nature of Complainant’s festivals and that it would drive pay-per-click users to Respondent’s website, and; (3) Respondent did not respond to Complainant’s effort to contact it, which is evidence of bad faith.
In response to Procedural Order No.s 1 & 2, Complainant has further argued that it established unregistered trademarks and unregistered commercial designations under German and Austrian law substantially prior to Respondent’s registration of the disputed domain name. Complainant refers to §4(2), of the German Trademark Act as providing protection for a sign as a trademark when it has acquired a reputation with the relevant public. Complainant refers to §5(2) of the German Trademark Act as providing protection for signs as commercial designations when they are used in the course of trade to identify a business or business unit. Complainant refers to §9 (1) and (3) of the Austrian Unfair Competition Act as being nearly identical to the German Act with respect to trademarks and commercial designations.
Complainant further indicated that it had never sought to register the word trademark ROCK IM PARK in Germany, although it has registered a stylized mark there.2
Complainant requests the Panel to direct the Registrar to transfer the disputed domain name to Complainant.
B. Respondent
Respondent did not reply to the Complaint by the Response due date. However, in response to Procedural Order No. 1, Respondent indicated that it registered the disputed domain name on January 6, 2006 with no knowledge of the Complainant.
6. Discussion and Findings
The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. The Panel will confine itself to making determinations necessary to resolve this administrative proceeding.
It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceedings that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
The Center notified the Complaint to Respondent by email and the Written Notice was sent by courier. Respondent provided a response to Procedural Order No. 1, indicating that Respondent received communications from the Center. The Panel is satisfied that Respondent was notified of the Complaint and was afforded a reasonable opportunity to respond.
Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use, and to obtain relief. These elements are that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Each of the aforesaid three elements must be proved by a complainant to warrant relief.
A. Identical or Confusingly Similar
Complainant has provided evidence of registration of the design and word trademark ROCK IM PARK by the German Patent and Trademark Office, with registration date of April 8, 2010 (applied for February 13, 2010), and evidence of registration of the word trademark ROCK IM PARK as a Community Trade Mark (CTM), with registration date of October 12, 2010 (applied for February 12, 2010). Complainant has provided evidence of use of the ROCK IM PARK trademarks. Respondent has not contested the validity of the aforesaid registrations, nor of Complainant’s rights in the trademarks. The Panel determines that Complainant has rights in the trademark ROCK IM PARK in Germany and in the European Union based upon registration in those jurisdictions.
Complainant has argued that it established unregistered trademark rights in ROCK IM PARK in Germany and Austria prior to 2006 on the basis of extensive use in commerce, and as evidenced by public association with its trademark in connection with a rock festival held in Munich. Complainant has provided evidence in the form of a Wikipedia history discussing the inauguration and evolution of the Rock im Park festival, including selected musical groups appearing since 1995. Complainant has referred to a large number of visits to its “official” website addressed by the domain names <rock-im-park.com> and <rock-im-park.de>, at least since 2000. Complainant has indicated that the Rock im Park festival was the subject of a live broadcast by MTV in 2005. There appears to be little doubt that rock music aficionados in Germany have been acquainted with the Rock im Park festival since substantially prior to 2006. Complainant has further indicated that, at least as early as 2005, a substantial number of tickets to the Rock im Park festival were sold by Austria’s leading online ticket seller.
The Panel is satisfied on the basis of the uncontested information provided by Complainant that the term ROCK IM PARK was associated by individuals interested in attending rock festivals in Germany with Complainant’s ROCK IM PARK entertainment enterprise substantially prior to 2006. In that regard, the Panel is satisfied based on the uncontested evidence before it that Complainant established unregistered trademark rights in ROCK IM PARK in Germany prior to 2006.3 Without making a determination as to whether Complainant established unregistered trademark rights in Austria prior to 2006, the Panel is satisfied by virtue of Complainant’s Internet presence in Austria and ticket sales there that members of the relevant public in Austria would likely have been aware prior to 2006 of Complainant’s unregistered mark in Germany.
The Panel is concerned that the term ROCK IM PARK is descriptive in the German language of rock festivals held in parks. Caution must be exercised in reserving that term to a particular trademark owner. However, Respondent has not raised any issue before the Panel. Furthermore, the OHIM has registered the word trademark ROCK IM PARK as a CTM, indicating that Complainant has persuaded that registration authority that the term is sufficiently distinctive to constitute a trademark. The Panel therefore leaves to some other party and/or forum any further question that may arise as to the capability of the term ROCK IM PARK to serve as a distinctive identifier for a rock festival.
The disputed domain name <rockimpark.com> is identical to Complainant’s trademark within the meaning of the Policy.
The Panel determines that Complainant has rights in the ROCK IM PARK trademark and that the disputed domain name is identical to that trademark.
B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration and use is that the respondent has no rights or legitimate interests in respect of the domain name (Policy, paragraph 4(a)(ii)). The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you 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.” (Policy, paragraph 4(c))
Complainant has argued that Respondent has no rights or legitimate interests in the disputed domain name because: (1) Respondent has not used the disputed domain name for a bona fide offering of goods or services, and is not making legitimate noncommercial or fair use of the disputed domain name; (2) Respondent is not a representative or licensee of Complainant; (3) the disputed domain name is neither identical nor similar to Respondent’s name; and (4) Respondent was not commonly known by the name “rockimpark” prior to registration of the disputed domain name. Complainant has made a prima facie demonstration that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent has not provided any explanation or justification for registration and use of the disputed domain name, or any basis on which the Panel might find that Respondent has rights or legitimate interests in the disputed domain name. There is also no evidence on the record that Respondent has been commonly known by the disputed domain name.
Respondent’s previous use of the disputed domain name was in connection with a link-farm parking page that included links directing Internet users to entertainment enterprises competitive with those of Complainant. The disputed domain name currently redirects Internet users to ”www.festivalhopper.de” which opens to a webpage headed “Festivalhopper” that provides information (in German) and links to ticketing for a variety of music concerts, festivals and related events. There is a specific sub-page for events in Germany, as well as a sub-page for events in Europe. There is information regarding potential musical acts at the Rock Im Park festival in Munich/Nürnberg for 2012 and 2013. Respondent is using Complainant’s trademark in the disputed domain name to direct Internet users to services of competitors of Complainant. Such use is plainly commercial. On its face, Respondent is not making fair use of Complainant’s trademark in the disputed domain name because it is using that trademark to direct Internet users to enterprises competing with Complainant. Respondent has not presented any argument that such use constitutes fair use within the meaning of the Policy. Respondent has failed to rebut Complainant’s prima facie demonstration of lack of rights or legitimate interests.
The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Pursuant to paragraph 4(a)(iii) of the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith”. Paragraph 4(b) of the Policy sets out a non-exhaustive list of facts and circumstances that shall, if established, constitute evidence of bad faith registration and use. Among those circumstances are: (iv) by using the domain name, [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location or of a product or service on [respondent’s] web site or location.
It is generally accepted by panelists rendering decisions under the Policy that a respondent may not have acted to register a domain name in bad faith prior to a complainant establishing rights in an identical or confusingly similar trademark. The reason for this is fundamental. The Policy provides remedies for cases in which domain names are registered with the intent to take unfair advantage of a trademark owner by exploiting the legitimate interests of the owner. If there is no trademark, there can be no intent to exploit the rights of its owner.4 This sole Panelist has rendered a substantial number of decisions adopting and applying this generally accepted principle (see, e.g., Dow Jones & Company, Inc. v. Idea Studios LLC dba Envent, WIPO Case No. D2009-1033; Super-Krete International, Inc. v. Concrete Solutions, Inc., WIPO Case No. D2008-1333; Foundation Source Philanthropic Services, Inc. v. Arlene B Gibson/Foundations That Make a Difference/Domain Discreet, WIPO Case No. D2007-0875). The general principle is articulated as the consensus view under paragraph 3.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), along with a compendium of decisions reflecting this general principle.5
Respondent registered the disputed domain name in 2006.6 Complainant applied for and secured registration of its trademark in Germany and the European Union (“EU”) (by its CTM application) in 2010. Were the Panel to render a decision based solely upon Complainant’s registered trademarks, Complainant would not succeed in establishing that Respondent registered the disputed domain name in bad faith. However, Complainant has established that it acquired unregistered trademark rights in ROCK IM PARK substantially prior to 2006. Moreover, the Panel concludes that Respondent was aware, or should have been aware, of Complainant’s unregistered trademark rights when it registered the disputed domain name.7 Complainant’s “official” website in operation well before 2006 used a domain name distinguished from Respondent’s disputed domain name solely by the inclusion of hyphens. Complainant’s “official” website and unregistered mark would have been identified by a routine Internet search.
Respondent is using the disputed domain name to direct Internet users for commercial gain to a website that is offering entertainment services competitive with those of Complainant. Respondent is creating a likelihood of confusion among Internet users as to whether Complainant is the source, sponsor, affiliate or endorser of Respondent’s website. This constitutes abusive use of the disputed domain name within the meaning of paragraph 4(b) the Policy.
The Panel determines that Respondent registered and is using the disputed domain name in bad faith.
The Panel will direct the Registrar to transfer the disputed domain name to Complainant.
7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <rockimpark.com>, be transferred to Complainant.
Frederick M. Abbott
Sole Panelist
Dated: August 28, 2012
1 Complainant submitted another webpage printout which it asserted was redirected from the disputed domain name, but there is no evidence on the printout of such redirection, and the Panel disregards this evidence (which in any case would not add a material fact to the proceeding).
2 Complainant referred to a 2011 District Court proceeding in Munich in which it alleges the judges recognized ROCK IM PARK as a commercial designation under German law, although the proceeding was settled without a formal decision. However, Complainant provided no documentation regarding this proceeding, nor did it attempt to explain the difference between a commercial designation and a trademark under German law. Insofar as the Policy refers only to rights in trademarks, the Panel does not consider this information material.
3 Part 2, section 1, § 4(2), of the German Trademark Act (Gesetz über den Schutz von Marken und sonstigen Kennzeichen (Markengesetz - MarkenG) provides (per WIPO Lex):
In German
§ 4 Entstehung des Markenschutzes
Der Markenschutz entsteht
1. durch die Eintragung eines Zeichens als Marke in das vom Patentamt geführte Register,
2. durch die Benutzung eines Zeichens im geschäftlichen Verkehr, soweit das Zeichen innerhalb beteiligter Verkehrskreise als Marke Verkehrsgeltung erworben hat, oder
3. durch die im Sinne des Artikels 6bis der Pariser Verbandsübereinkunft zum Schutz des gewerblichen Eigentums (Pariser Verbandsübereinkunft) notorische Bekanntheit einer Marke.
In English (per WIPO Lex associated Google translation tool):
§ 4 Creation of trademark protection
Trademark protection
1. by registration as a trade mark by the Patent Office,
2. through the use of a sign in trade, where the character has acquired in the trade circles as brand reputation with the public, or
3. the meaning of Article 6 bis of the Paris Convention for the Protection of Industrial Property (Paris Convention) notorious reputation of a brand.
4 The WIPO Overview 2.0 further notes that there may be some exceptional circumstances in which bad faith registration might be found despite the fact that trademark rights had not yet arisen on the part of a complaining party. As an illustrative case, the WIPO Overview 2.0 refers to a situation when, shortly before or after a publicized merger between companies, a domain name is registered before any new trademark rights have arisen, or; when a potential mark has been the subject of substantial media attention of which the respondent was aware (e.g., in connection with a widely anticipated product or service launch), and before the complainant was able to obtain registration of an applied-for trademark, and the respondent registers the domain name. This Panel will not speculate regarding the circumstances in which an exception to the general principle might be drawn, but observes that WIPO Overview 2.0 cautiously approaches the enumeration of potential circumstances.
Complainant refers to one particular decision, Stoneygate 48 Limited and Wayne Mark Rooney v. Huw Marshall, WIPO Case No. D2006-0916, in which the panel had quoted from an earlier version of WIPO Overview 2.0. That case involved the respondent having registered the personal name of a well-known footballer in the United Kingdom shortly before the footballer’s registration of a Community Trade Mark was granted, but postdating the application for it. There was a relatively close question of sequencing between the complainant’s application for a CTM, the respondent’s registration of the disputed domain name, and registration of the CTM. With that said, the panel in that case nevertheless found the complainant had rights in his name prior to the respondent’s registration of the subject domain name under the English doctrine of “passing off”.
5 While, as the WIPO Overview 2.0 notes, there are a small number of UDRP panels that have questioned the robustness of the aforementioned general principle, this Panel has not been persuaded of an alternative view.
6 The Office for Harmonisation of the Internal Market states, “The rights conferred by a Community trade mark prevail against third parties from the date of publication of registration of the trademark. Reasonable compensation may, however, be claimed in respect of matters arising after the date of publication of a Community trade mark application.” OHIM website under Trade Marks, The registration process, Registration, “http://oami.europa.eu/ows/rw/pages/CTM/regProcess/registration.en.do”, visited by Panel July 20, 2012).
7 Respondent’s sole intervention in this proceeding was a statement that it was unaware of Complainant and its rock festival when it registered the disputed domain name. In light of the extensive recognition of Complainant's rock festival (as evidenced by the hits on its "official" website), the Panel is not persuaded by Respondent’s statement.