ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
Complainant: Jan Lindskog, Skånemejerier, ek. för
Respondent: Gratisporr / Jonas Nilsson
Case number: AF 0434
Contested Domain Name: Skånemejerier.nu
Panel Members: Professor, dr.jur. Mads Bryde Andersen
Remedy sought: Transfer
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Website on September 18, 2000. The hardcopy of the Complaint Form and annexes were received on September 25, 2000. Payment was received on the same date.
Upon receiving all the required information, eResolution's clerk proceeded to:
- Confirm the identity of the Registrar for the contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the essential contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
This inquiry lead the Clerk of eResolution to the following conclusions: the Registrar is .NU Domain LTD, the Whois database contains all the required contact information, the contested Domain Name resolves to an inactive Web page and the Complaint is administratively compliant.
An email was sent to the Registrar by eResolution Clerk's Office to obtain confirmation and a copy of the Registration Agreement on September 18, 2000. The requested information was received on September 19, 2000.
The Clerk then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with paragraph 2 (a) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy. The Clerk's Office fulfilled all its responsibilities under Paragraph 2(a) in forwarding the Complaint to the Respondent, notifying the Complainant, the concerned Registrar and ICANN on September 26, 2000. This date is the official commencement date of the administrative proceeding.
Only the email to the postmaster@skånemejerier.nu was returned 'undeliverable'. No fax contact was provided by the Complainant or found on the Whois database.
The complaint, official notification and all the annexes were sent via registered mail with proof of service, to the respondent. According to the Canada Post tracking system, all were delivered.
On October 17, 2000, the Clerk's Office notified the Respondent and the Complainant of the failure of the first one to respond to the complaint. It also informed the parties that according to ICANN Rules Art.5 (ix)(e)"If a respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint"
On October 17, 2000, the Clerk's Office contacted Mr. Mads Bryde Andersen, and requested that he acts as panelist in this case.
On October 18, 2000, Mr. Mads Bryde Andersen, accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.
On October 18, 2000, the Clerk's Office forwarded a user name to Mr. Mads Bryde Andersen, allowing him to access the Complaint Form, the Response Form, and the evidence through eResolution's Automated Docket Management System.
On October 18, 2000, the parties were notified that Mr. Mads Bryde Andersen had been appointed and that a decision was to be, save exceptional circumstances, handed down on October 31, 2000.
3. Factual Background
Complainant and Respondent are both domiciled in the province of Skåne, Sweden. Complainant runs a major dairy company in the city of Malmö, Sweden, for which it uses the name "Skånemejerier" (in English: "Daires of Skåne". The dairy has a turnover of 2,5 billion Swedish Kroner in annual sales turnover and 700 employees at four sites.
According to Complainant, Respondent is a private individual who has not obtained any license from Compainant or from any other authoritative source to use the name "Skånemejerier". However, since Respondent has not answered to the complaint in this case, this information is not verified.
According to art. 5, sub-paragraph (e) of the ICANN Rules for Uniform Domain Name Dispute Resolution Policy of October 24, 1999, in such cases the Panel shall decide the dispute based upon the complaint, in the absence of exceptional circumstances. The Panel does not see such circumstances in the present case. In relation to this information, the decision is therefore based upon the assertions of Complainant.
Complainant has produced evidence to the Panel that it has registered the name "Skånemejerier" followed by the abbreviation "ek för" (Ekonomisk Förening, that is "co-operative society") in the Swedish Patent and Trademark Office (Patent- og Registreringsverket). Since 1991, according to Complainant, the name has been actively used for Complainant's business.
Complainant has also made the following domain name registrations for the name "skanemejerier".
Since the alphabet implemented in the present DNS system does not allow for non-English characters as the Nordic letter "å", the second letter of this name is written as "a" in the said registrations.
The Domain Name registered by Respondent and at issue in this Complaint is skånemejerier.nu, spelled correctly with "å" as the second letter. The said Registration was made possible due to the multi-lingual domain name services offered now by the .nu registrar.
4. Parties' Contentions
Complainant claims that the contested domain name is not only similar but identical to its registered trademark, in that it uses the Nordic letter "å" instead of "a". The earlier domain name registrations made by Complainant for its trademark - and not at issue in this case - are thus only similar, since they spell Complainant's name as "skanemejerier". Complainant also points to the fact that Respondant registered its domain name and created its web site several years after the "Skånemejerier" trademark was registered in the Swedish patent and trademarks office. Complainant claims that this is clear evidence that Respondent has no legitimate rights in the contested domain name.
Complainant further claims that it believes Respondent has registered the contested domain name for the purpose of intentionally disrupting the business of Complainant. Since Respondent is domiciled 30 km from the headquarters of Complainant. Since Complainant, allegedly, has a clear presence in the southern part of Sweden, Respondent can not be unaware of the Skånemejerier trademark.
As stated above, Respondent has not responded to the complaint.
5. Discussion and Findings
Under para 4 (a) of the ICANN Uniform Domain Name Dispute Resolution Policy, mandatory administrative proceedings like the present are required if a third party (complainant) asserts that the domain name at issue is identical or confusingly similar to a trademark or service mark in which the complainant has rigths (i.); and that the respondent has no rights or legitimate interests in the domain name (ii.); and that the domain name has been registered and is being used in bad faith (iii.). If the complainant successfully proves all three elements, then this Panel has the authority to require the transfer of the respondent's domain name registration, or to order that it be transferred to the complainant, cf. para 4(i). It is therefore these three issues which are in question in this case.
As to the first question of similarity (Paragraph 4(a)(i) of the ICANN Policy), it is obvious to this Panel that the trademark "Skånemejerier" is not only similar but identical to the registered domain name. On this part, the Panel must therefore agree with Complainant
Paragraph 4(a)(ii) of the ICANN Policy also provides that Respondent has no rights or legitimate interests in respect of the domain name at issue. In the absence of a response from Respondent, the Panel must take it for granted that Complainant has not agreed that Respondent can use the name "Skånemejerier" for the said service. It might be added that it seems hard for the panel to think of a motive for Complainant to give such a license to Respondant given the status of the respective parties and the risk of possible badwill effects caused by a mingling goods and services of Complainant with those of Respondent.
The remaining issue before the Panel is therefore whether the domain name has been registered and is being used in bad faith. As already indicated, the domain name can not be seen to be in present use. The issue, therefore, is whether the domain name registered in itself was made in bad faith. Due to the lack of a response from Respondent, the Panel also has do decide this issue on the basis of the information presented to the Panel by Complainant. Given the fact that the name "Skånemejerier" is, according to Complainant, a well-established trademark in the province of Skåne, and that Respondant has no legitimate reason to register that name to himself, the Panel also finds in favor of Complainant on this point.
Based on these findings the Panel has to rule in favor of Complainant and orders a transfer of the domain name skånemejerier.nu from Respondant to Complainant.
Copenhagen, 31. October 2000
(s) Mads Bryde Andersen,