The Complainant is S.C. Karcher România S.R.L. of Bucharest, Romania represented by Ciresa Meinhard, Austria.
The Respondent is Raluca Voicu, SC Espavo SRL of Brasov, Romania.
The disputed domain name <karcher.ro> is registered with RNC.ro.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2010. On July 2, 2010, the Center transmitted by email to RNC.ro. a request for registrar verification in connection with the disputed domain name. On July 5, 2010, RNC.ro transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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 the Respondent of the Complaint, and the proceedings commenced on July 14, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 3, 2010. The Response was filed with the Center on August 3, 2010.
The Center appointed Mihaela Maravela as the sole panelist in this matter on August 12, 2010. 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.
As regards the question of the language applicable to this dispute, paragraph 11(a) of the Rules provides:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
“However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel's discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” See, Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004.
In the present case:
- the Registrar of the disputed domain name has informed the Center that the language of the relevant registration agreement was Romanian,
- the Complainant has filed the Complaint in English, and following the Language of Proceedings Notification of the Center dated July 7, 2010 the Complainant requested on the same day for English be the language of the proceedings, arguing, inter alia, that the Respondent is well aware f the English language, using this language in its daily activity with its foreign partners,
- the Respondent filed a Response on August 3, 2010 in the Romanian language.
According to Rules, paragraph 11(b), based on the circumstances of this case and as previously decided by other panels (Nilfisk-Advance A/S v. SC Getic Decor SRL, WIPO Case No. DRO2009-0007, Yannidis Brothers SA, and SC Vitex Hermes SRL, v. SC IOANNINA PRODUCT SRL, WIPO Case No. DRO2009-0009), the Panel finds that the language of the present proceeding should be English, for the following reasons:
- The Complainant requested for English to be the language of the administrative proceedings;
- english was the language of some correspondence which seems to have been carried before the filing of the present Complaint, without protest from the Respondent;
- during the present proceedings, the Respondent carried some correspondence with the Center in English language;
- the mentioned correspondence with the Center is an indication that the Respondent is familiar with English language;
- neither in the said statements nor in its Response, does the Respondent oppose English as the language of the proceedings;
- in its Response the Respondent confirms that it carries out commercial activity with foreign companies;
- the non existence on the Registrar's website, at the disputed domain name registration time with RNC.ro (August 19, 2003), of provisions for a domain name applicant to choose between English or Romanian as the controlling language of the registration agreement at this moment (see Inter-IKEA Systems B.V. v. SC Agis International Sport S.R.L., WIPO Case No. DRO2006-0001; DaimlerChrysler Corporation v. Web4COMM SRL ROMANIA, WIPO Case No. DRO2006-0003; Companie Générale des Établissements Michelin - Michelin & Cie. v. IPSOS New Media Research SRL, WIPO Case No. DRO2006-0004; Dell Inc. v. C.I.T. GRUP SRL, WIPO Case No. DRO2007-0007).
The following facts have been alleged by the Complainant and not refuted by the Respondent.
The Complaint is based on international trademark no. 603 913 KÄRCHER, registered on February 12, 1993 for ALFRED KÄRCHER GmbH & CO KG (Germany) in class 1, 3, 5, 6, 7, 9, 11, 12, 20, 21, 22, 37 and 42 valid in Romania.
The Complainant was registered with the Trade Register on March 18, 2008. According to the certificate for confirmation of company details issued by the Trade Register Office attached to the Bucharest Tribunal, the associates are ALFRED KÄRCHER GmbH & CO KG and KARCHER BETEILIGUNGS - GmbH. Therefore, Complainant is entitled to use the trademark in Romania on an exclusive basis.
Karcher cleaning equipment for home, garden and car is renowned through the world. High performance units for commercial cleaning applications are also available.
The Complainant is owner of domain name <kaercher.ro> and runs the website “www.kaercher.ro”.
The disputed domain name was registered on August 19, 2003.
The Complainant contends that the disputed domain name <karcher.ro> is confusingly similar to the trademark KÄRCHER because there is only an “A” instead of “Ä” which is only used in German language.
The Complainant contends that the Respondent has no rights or legitimate interest in respect of the domain name because the Respondent simply redirects web-users, that type “karcher,ro” in their browsers, to the website “www.espavo.ro”.
Also, the Complainant contends that the disputed domain name was registered and is being used in bad faith because the Respondent simply redirects traffic to its website where it offers KÄRCHER cleaning equipment, misleading Romanian consumers, who think they are visiting the official Complainant’s website “www.kaercher.ro”. The Respondent as a former dealer of KÄRCHER should be presumed to have notice of the Complainant mark. The Respondent has not obtained any authorization from the Complainant to use its KÄRCHER mark. The Respondent is a direct competitor of the Complainant, there is a real likelihood of confusion between the Complainant’s mark and the Respondent domain name <karcher.ro>.
The Respondent contends that he is a dealer of KARCHER products based on a contract concluded with Center LUKA GmbH Germany. The Respondent contends that it uses the disputed domain name only in order to promote the Karcher cleaning products with the consumers.
Nevertheless, the Respondent in its Response unilaterally offered to transfer the disputed domain name to Complainant without charge.
As held by the panel in Bharat Sanchar Nigam Limited (BSNL) v. Domain Hostmaster, WIPO Case No. D2007-1800 and decisions cited therein “panels, when faced with a ‘unilateral consent to transfer’, have taken three different approaches. Some panels have granted the relief requested on the basis of Respondent’s consent without a review and analysis of the facts supporting the claim. Williams Sonoma, Inc. v. EZ Port, WIPO Case No. D2000-0207; Slumberland France v. Chadia Acohuri, WIPO Case No. D2000-0195. Others have held that the consent to transfer is effectively a concession that the three elements of the Policy have been satisfied, and ordered transfer on this basis. Qosina Corporation v. Qosmedix Group, WIPO Case No. D2003-0620; Desotec N.V. v. Jacobi Carbons AB, WIPO Case No. D2000-1398. Still other panels have proceeded to analyze whether the evidence submitted satisfies the three elements of the Policy. Société Française du Radiotéléphone-SFR v. Karen, WIPO Case No. D2004-0386; Eurobet UK Limited v. Grand Slam Co., WIPO Case No. D2003-0745.”
In this case, the Panel does not consider that there are circumstances where it is appropriate to address the merits of the Complaint. Like previous panels have stated, “Whether or not the Domain Name contravenes the Policy - as to which the Panel makes no finding - there is no reason to suppose that the Respondent will make abusive registrations of other domain names in the future”. See John Bowers QC v. Tom Keogan, WIPO Case No. D2008-1720.
This Panel considers that a genuine unilateral consent to transfer by the Respondent provides a basis for an order for transfer without consideration of the paragraph 4(a) elements. As was noted by the Panel in The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132, when the Complainant seeks the transfer of the disputed domain name, and the Respondent consents to transfer, the Panel may proceed immediately to make an order for transfer pursuant to paragraph 10 of the Rules. Accordingly the Panel will order the transfer of the disputed domain name to the Complainant. This is clearly the most expeditious course. See also Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207. Infonxx.Inc v. Lou Kerner, WildSites.com, WIPO Case No. D2008-0434.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <karcher.ro> be transferred to the Complainant.
Mihaela Maravela
Sole Panelist
Dated: August 26, 2010