WIPO Arbitration and Mediation Center

EXPERT DECISION

Ameropa AG v. Eugene Maslyanitsin

Case No. DCH2013-0001

1. The Parties

The Claimant is Ameropa AG from Binningen, Switzerland, represented by Lenz Caemmerer, Switzerland.

The Respondent is Eugene Maslyanitsin from Kostroma, Russian Federation.

2. Domain Name

The dispute concerns the following domain name <ameropa-ag.ch>.

3. Procedural History

The Request was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 15, 2013. On the same day, the Center transmitted by email to SWITCH, the “.ch” and “.li” registry, a request for verification in connection with the disputed domain name. On January 16, 2013, SWITCH transmitted by email to the Center its verification response confirming that the Respondent is listed as the holder of the domain name and providing the relevant contact details. The Center verified that the Request satisfied the formal requirements of the Rules of procedure for dispute resolution proceedings for “.ch” and “.li” domain names (the “Rules of Procedure”), adopted by SWITCH, on March 1, 2004.

In accordance with the Rules of Procedure, paragraph 14, the Center formally notified the Respondent of the Request, and the Dispute resolution proceedings commenced on January 17, 2013. In accordance with the Rules of Procedure, Paragraph 15(a), the due date for Response was February 6, 2013.

The Respondent has neither filed a Response nor expressed his readiness to participate in a Conciliation in accordance with Paragraph 15(d) of the Rules of Procedure.

On February 8, 2013, the Center notified the Claimant accordingly who, on the same day, made an application for the continuation of the Dispute resolution proceedings in accordance with specified in Paragraph 19 of the Rules of procedure and paid the required fees.

On February 18, 2013, the Center appointed Philippe Gilliéron as Expert in this case. The Expert finds that it was properly appointed. In accordance with Rules of Procedure, Paragraph 4, the above Expert has declared his independence of the parties.

4. Factual Background

The Claimant is a Swiss company incorporated on December 19, 1994, whose main business consists of trading industrial and raw materials and that has since become a significant trader in fertilizers and grains worldwide. The Claimant owns the websites “www.ameropa.com”, registered on June 16, 2004, and “www.ameropa.ch”, registered on July 24, 1997.

The Claimant is present in about 30 countries around the world. In 2011, the Claimant and its various subsidiaries had sales amounting to USD 7.4 billion, trading in 10 million tons of fertilizer and 7 million tons of grain that year. In 2011, the Claimant counted 4’875 employees.

In 2004, the Claimant was listed as the 101th company in the Swiss Top 500 companies by Handelszeitung. The Claimant is regularly reported on in press articles specializing in the chemical and fertilizer industries.

The Respondent owns the disputed domain name <ameropa-ag.ch>, which displays a webpage consisting of different links to allegedly press articles related to the Claimant’s Board members, directors and business partners, as well as the contact details of the Claimant at the bottom of the webpage.

5. Parties’ Contentions

A. Claimant

The Claimant first asserts that the disputed domain name is no more than a reproduction of the Claimant’s registered company name.

The website displayed under the disputed domain name <ameropa-ag.ch> and the domain name <ameropa-ag.com> (which is currently subject to a proceeding und the Uniform Domain Name Dispute Resolution Policy (UDRP)), both registered by the Respondent, reproduces (i) the use of red background with a Swiss cross and the name “Ameropa” in the same font as the one displayed on the Claimant’s website, (ii) a logo “Fairness, Integrity, Fun” which, but for one term, is the same as that appearing on the Claimant’s homepage, (iii) an aerial photograph of the Claimant’s head office in Basel and (iv) an almost exact reproduction of the contact details of the Claimant under the heading “contacts”.

According to the Claimant, the intent of the Respondent would be to hold the website out as a news service generated by the Claimant. The content of the website would mostly relate to allegedly press articles of a defamatory nature related to the Claimant, its board members and business partners.

Such use would infringe both Art. 3 lit. b and d of the Swiss Unfair Competition Act, for both making incorrect statements about the Respondent himself and creating a likelihood of confusion with the Claimant, by making users mistakenly believe that the website would be affiliated with the Claimant. It would also infringe Art. 29.2 of the Swiss Civil Code.

B. Respondent

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

6. Discussion and Findings

In accordance with Paragraph 24(c) of the Rules of Procedure, the Expert shall grant the Request if the registration or use of the disputed domain name constitutes a clear infringement of a right in a distinctive sign which the Claimants own under the law of Switzerland or Liechtenstein.

Paragraph 24(d) of the Rules of Procedure further adds that in particular, a clear infringement of an intellectual property right exists when:

(i) both the existence and the infringement of the claimed Right in a distinctive sign clearly result from the wording of the law or from an acknowledged interpretation of the law and from the presented facts and are proven by the evidence submitted; and

(ii) the Respondent has not conclusively pleaded and proven any relevant grounds for defense; and

(iii) the infringement of the right justifies the transfer or deletion of the disputed domain name, depending on the remedy requested in the request.

A. The Claimant has a right in a distinctive sign under the law of Switzerland

In the present case, the Claimant demonstrates to enjoy exclusive rights in the word AMEROPA as a corporate name validly registered on December 19, 1994 (art. 956 of the Swiss Civil Code of Obligations).

B. The registration or use of the domain name constitutes a clear infringement of the Claimant’s right under the law of Switzerland

Based upon the above-mentioned exclusive right of the Claimant, the Expert has no difficulty in holding that the registration or use of the disputed domain name constitutes a clear infringement of this right.

There is ample evidence in the file that the Respondent deliberately infringes upon the Claimant’s rights in the corporate name AMEROPA, and thus on Art. 956 of the Swiss Civil Code of Obligations.

The disputed domain name entirely incorporates the distinctive sign AMEROPA held by the Claimant as a corporate name, but for the addition of a hyphen and the acronym AG defining the type of company (Aktiengesellschaft), which is a descriptive element.

The Expert finds that the website attached to the disputed domain name has manifestly been designed so as to create a confusion among users and let them believe that the website could belong to the Claimant, or at a minimum be affiliated to it. As rightfully stated by the Claimant, the website displayed under the disputed domain name reproduces the layout of the Claimant’s official website by (i) using a red background with a Swiss cross and the name AMEROPA in the same font as the one displayed on the Claimant’s website, (ii) displaying a logo “Fairness, Integrity, Fun” which, but for one term, is the same as that appearing on the Claimant’s homepage, (iii) depicting an aerial photograph of the Claimant’s head office in Basel and (iv) reproducing the contact details of the Claimant under the heading “contacts”.

The Respondent, which did not take part in the proceedings, did not come with any explanation to rebut these findings, for good reasons, as the Expert finds it hard to believe that the Respondent could come with any convincing explanation. The infringement of Art. 956 of the Swiss Code of Obligations is obvious and leaves no room for discussion.

As a result, the overall circumstances of the case thus make it clear that the requirements of Paragraph 24 of the Rules of Procedure have been fulfilled, and that both the registration and use of the disputed domain name constitutes a clear infringement of the Claimant’s exclusive rights.

7. Expert Decision

For the above reasons, in accordance with Paragraphs 24 of the Rules of Procedure, the Expert orders that the disputed domain name <ameropa-ag.ch> be transferred to the Claimant.

Philippe Gilliéron
Expert
Dated: March 4, 2013