WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Danish Camp Supply A/S v. Restore
Case No. D2006-0214
1. The Parties
The Complainant is Danish Camp Supply A/S, Nørresundby, Denmark, represented by Jakob Østervang, Denmark.
The Respondent is Restore, Strandby, Denmark.
2. The Domain Name and Registrar
The disputed domain name <danishcampsupply.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 17, 2006. On February 17, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On February 20, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 March 15, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 4, 2006. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default April 5, 2006.
The Center appointed Peter G. Nitter, Jonas Gulliksson and Lone Prehn as panelists in this matter on April 25, 2006. The Panel finds that it was properly constituted. Each member of 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.
4. Factual Background
The Complainant’s business name is Danish Camp Supply A/S. The Complainant has registered and uses the domain name <danishcampsupply.dk>. In the Complainant’s logo the trademark DANISH CAMP SUPPLY is included.
5. Parties’ Contentions
A. Complainant
The Complainant’s business is to deliver turnkey camp and camp supplies, components and services for operations for camps. The Complainant submits that it has carried out its business under the name DANISH CAMP SUPPLY since 1981, and has all trademark rights to the name DANISH CAMP SUPPLY.
According to the Complainant, the Respondent is not affiliated with the Complainant and has no rights or other legitimate interest in the disputed domain name.
The Complainant submits that the Respondent, by using the disputed domain name to offer sex toys for sale, is misleading customers and Internet users to thinking that the Respondent is connected to the Complainant and its business.
According to the Complainant the disputed domain name was registered and is being used in bad faith. The Complainant submits that the Respondent has offered the Complainant to sell or lease the disputed domain name.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the Policy does not require that the Complainant’s trademark is registered for such a right to exist. In this respect, the Panel refers to earlier WIPO UDRP decisions concerning unregistered trademarks. The Panel finds that the Complainant has evidenced that it has established a trademark right in the designation DANISH CAMP SUPPLY through use.
Based on the evidence submitted, and in view of the Complainant’s long use of the name DANISH CAMP SUPPLY as its business name, the Panel finds that the Complainant has trademark rights to the name DANISH CAMP SUPPLY.
The disputed domain name is identical to the Complainant’s trademark DANISH CAMP SUPPLY. The Panel therefore finds that the requirement of confusing similarity between the domain name at issue and the Complainant’s trademark is fulfilled.
B. Rights or Legitimate Interests
The Respondent has not contested the Complainant’s allegation that the Respondent lacks rights or legitimate interests in the contested domain name.
It is generally difficult for the Complainant to prove that the Respondent does not have any rights or legitimate interests in the domain name at issue. On the other hand, it would be fairly simple for the Respondent to demonstrate that it has such rights or legitimate interests pursuant to paragraph 4(c) of the Policy. Previous decisions under the Policy have therefore found it sufficient for a complainant to make a prima facie showing of its assertion in the event of a respondent’s default.
The basis for the Panel’s decision is that the Complainant has not granted the Respondent any rights to use its mark, and that it is in no way affiliated with the Respondent.
The Panel finds that the circumstances mentioned and evidenced by the Complainant, i.e. the correspondence between the Respondent and the Complainant in which the Complainant is offered to buy or lease the disputed domain name, and the Respondent’s actual use of the disputed domain name, are sufficient to establish a prima facie showing that the Respondent has no rights or legitimate interests in the domain name at issue.
The Respondent has not demonstrated any of the three circumstances that constitute rights to or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy, or any other circumstances indicating such rights or legitimate interest, and the Panel cannot find any indications of such circumstances in the case file. Therefore the Panel concludes that the Respondent does not have any rights to or legitimate interests in respect of the domain name at issue.
C. Registered and Used in Bad Faith
The Panel has considered the Complainant’s assertions and evidence with regard to the Respondent’s registration and use of the domain name in bad faith. By not submitting a Response, the Respondent has failed to invoke any circumstances that could demonstrate that the Respondent did not register and use the domain name at issue in bad faith.
The Policy, paragraph 4(b), sets forth four non-exclusive examples of situations that may be deemed to reflect “bad faith” registration and use of a domain name. The Panel finds that two of these have been established.
The Panel finds that the correspondence between the Respondent and the Complainant in which the Complainant is offered to buy or lease the disputed domain name, indicates that the Respondent has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant.
Further, the Panel finds it evidenced that the Respondent has been attempting to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship or affiliation of the website.
The Complainant has evidenced that the website with the domain name has been used for the sale of sex toys. At the moment the disputed domain name is being used to sell DVDs containing pornographic material, Internet users are redirected to “www.potty.org” when entering the disputed domain name. The use of the disputed domain name thus appears to be an attempt to attract for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark. This is evidence of bad faith registration and use pursuant to the Policy, paragraph 4(b).
As a result of the above, the Panel finds it evidenced that the domain name at issue was registered and has been used in bad faith by the Respondent.
7. Decision
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 <danishcampsupply.com> be transferred to the Complainant.
Peter G. Nitter | |
Jonas Gulliksson |
Lone Prehn |
Dated: May 9, 2006