Veuve
Cliquot Ponsardin, Maison Fondée en 1772
v.
The
Polygenix Group Co.
[Indexed as:
Veuve Cliquot v. Polygenix]
[Indexed as:
VeuveCliquot.org]
WIPO Arbitration
and Mediation Center
Administrative
Panel Decision
Case No. WIPO
D2000-0163
Commenced:
March 22, 2000
Judgment: May 1, 2000
Presiding Panelist:
Honourable Sir Ian Barker QC
Domain name
- Domain name dispute resolution policy - Registered trademarks - Identical
- Legitimate Interest - Bad faith registration - Bad faith use - Domain
name trafficking - World-famous mark - Offer to sell domain name - Opportunistic
bad faith.
Complainant
contends that their world-famous name and mark, VEUVE CLIQUOT, is being
used in bad faith by Respondent through the domain name, VEUVECLIQUOT.ORG,
owned by Respondent.
HELD,
Name Transferred to Complainant.
Complainant
produces world-famous champagne in several styles and currently sells it
in over one hundred countries. Complainant or its predecessors and
associated corporations own registered trademarks of VEUVE CLIQUOT in many
countries.
Respondent
has posted a website at VEUVECLIQUOT.ORG which states that the domain name
is not in use but that those with an interest in developing the domain
name should contract the registrant, with a view to purchasing the domain
name from Respondent.
The domain
name VEUVECLIQUOT.ORG is obviously identical or confusingly similar to
Complainant's mark. Likewise, the Panel decides that Respondent has
no rights or legitimate interests in the domain name at issue. The panel
also considers that Respondent has registered and used the domain name
VEUVECLIQUOT.ORG in bad faith.
The domain
name is so obviously connected with such a well-known product that its
very use by someone with no connection to the product suggests opportunistic
bad faith. In addition, Respondent's offer to treat with persons
with a "property interest" in the domain name is powerful evidence of bad
faith, especially when the value which Respondent seeks to secure from
the sale is based on the underlying value of Complainant's trademark.
Policies
referred to
Uniform Domain
Name Dispute Resolution Policy, adopted August 26, 1999
Registration
Agreements referred to
Network Solutions
Inc. 4.0 Service Agreement
Cases referred
to
Harrods Ltd.
v. Boyd, Case No. D2000-0060
China Ocean
Shipping (Group) Co. Ltd. v. Cao Shan Hui, Case No. D2000-0066
Educational
Tertiary Service v. TOEFL, WIPO Case D2000-0044
Panavision
International LP v. Toeppen, 141 F.3d 1315 (9th Circ. 1998)
Panel Decision
referred to
--
Barker, Panelist:
-
1. The Parties
The Complainant
is Veuve Cliquot Ponsardin, Maison Fondée en 1772, a French corporation
with a postal address of 12 Rue de Temple, 51100 Reims, France.
The Respondent
is The Polygenix Group Co., with a postal address of PO Box 234, Ferrari
Offices, Egmont Street, Kingston St. Vincent, Canada. No street address
is known for the Respondent.
2. The Domain
Name and Registrar
The domain
name at issue is "VEUVECLIQUOT.ORG". The domain name is registered
with Network Solutions Inc., 505 Huntmar Park Drive, Herndon, Virginia
20170, United States of America ("NSI").
3. Procedural
History
The Complaint
submitted by Veuve Cliquot Ponsardin, Maison Fondée en 1772 was
received on March 15, 2000, (electronic version) and March 16, 2000, (hard
copy) by the World Intellectual Property Organization Arbitration and Mediation
Center ("WIPO Center").
On or about
March 20, 2000, a request for Registrar verification was transmitted by
the WIPO Center to NSI, requesting it to:
Confirm that
a copy of the Complaint had been sent to it by the Complainant as required
by the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("Supplemental
Rules"), paragraph 4(b).
Confirm that
the domain name at issue is registered with NSI.
Confirm that
the person identified as the Respondent is the current registrant of the
domain name.
Provide full
contact details, i.e., postal address(es), telephone number(s), facsimile
number(s), email address(es), available in the Registrar's WHOIS database
for the registrant of the disputed domain name, the technical contact,
the administrative contact and the billing contact for the domain name.
Confirm that
the Uniform Domain Name Dispute Resolution Policy was in effect.
Indicate the
current status of the domain name.
By email dated
March 21, 2000, NSI advised WIPO Center as follows:
NSI had received
a copy of the Complaint from the Complainant.
NSI is the
Registrar of the domain name registration "VEUVECLIQUOT.ORG".
The Polygenix
Group Co. is shown as the "current registrant" of the domain name "VEUVECLIQUOT.ORG".
The registrant is identified by a postal address: PO Box 234, Ferrari Offices,
Egmont Street, Kingstown St. Vincent, Canada and an email address of "rdc@thepolygenixgroup.com".
The administrative
contact is Registration Solutions, 3044 Floor Street West, Suite 529, Toronto,
Ontario, Canada M6S 4M4. Email address admin@registrationsolutions.commailto:admin@registrations????.
Telephone and facsimile numbers of (416) 410 1243 and (416) 410 1244 respectively
were supplied.
The technical
and zone contact was Domain Technicians (DT607-ORG) dot@REGISTRATIONSOLUTIONS.COM.
Other contact
details for Domain Technicians were the same as those of Registration Solutions.
NSI's 4.0 Service
Agreement is in effect.
The domain
name registration "VEUVECLIQUOT.ORG" is in "Active" status.
NSI has currently
incorporated in its agreements the policy for Uniform Domain Name Dispute
Resolution adopted by the Internet Corporation for Assigned Names and Numbers
("ICANN").
The advice
from NSI that the domain name in question is still "active", indicates
the Respondent has not requested that the domain name at issue be deleted
from the domain name database. The Respondent has not sought to terminate
the agreement with NSI. Accordingly, the Respondent is bound by the
provisions of NSI's Domain Name Dispute Resolution Policy, i.e., the ICANN
policy. The Respondent has not challenged the jurisdiction of the
Panel.
Having verified
that the Complaint satisfied the formal requirements of the Uniform Policy
and the Uniform Rules, the WIPO Center on March 22, 2000, transmitted by
post/courier and by email a notification of Complaint and Commencement
of Administrative Proceedings to the Respondent. A copy of the Complaint
was also emailed to NSI and ICANN.
The Complainant
elected to have its Complaint resolved by a single panel member:
it has duly paid the amount required of it to the WIPO Center.
The Respondent
was advised that a Response to the Complaint was required within 20 calendar
days (i.e., by April 10, 2000). The Respondent was also advised that
any Response should be communicated, in accordance with the Rules, by four
sets of hard copy and by email.
On April 12,
2000, the WIPO Center invited the Honourable Sir Ian Barker QC of Auckland,
New Zealand, to serve as Sole Panelist in the case. It transmitted
to him a statement of acceptance and requested a declaration of impartiality
and independence.
On April 12,
2000, the Honourable Sir Ian Barker QC advised his acceptance and forwarded
to the WIPO Center his statement of impartiality and independence.
The Panelist finds that the Administrative Panel was properly constituted
in accordance with the Rules and the Supplemental Rules.
On April 12,
2000, WIPO Center forwarded to the Honourable Sir Ian Barker QC by courier
the relevant submissions and the record. These were received by him
on April 22, 2000. In terms of Rule 5(b), in the absence of exceptional
circumstances, the Panel would have been required to forward its decision
by April 27, 2000. However, with the Easter holidays intervening,
the decision will be forwarded on or before May 3, 2000.
The Panel has
independently determined and agrees with the assessment of WIPO Center
that the Complaint meets the formal requirements of the Rules for Uniform
Domain Name Dispute Resolution Policy as approved by ICANN on October 24,
1999, ("the Rules") and the Supplemental Rules.
The language
of the administrative proceeding is English, being the language of the
registration agreement.
On April 20,
2000, WIPO Center and others, including the Panelist, received an email
from the "Domain administrator" at admin@registrationsolutions.com, alleging
that the registration of the Polygenix Group for the domain name had been
deleted on a date in January or February 2000, which preceded the issue
of WIPO Center procedures. On April 29, 2000, another email from
the same source stated that it had been 9 weeks since deletion had been
requested and enquired when deletion would be recorded.
In the absence
of evidence of actual deletion, and at the request of the Complainant,
the Panel has proceeded to adjudicate on the merits of the dispute.
The Complainant advises that as at March 14, 2000, NSI's database shows
the domain name was still being used by the Respondent as a website.
4. Factual
Background
The Complainant
is the owner of the VEUVE CLIQUOT mark and name. It produces the
world-famous Veuve Cliquot champagne in a variety of styles and currently
sells it in 120 countries. Veuve Cliquot champagne has been well-known
throughout the world for 200 years. The Complainant or its predecessors
and associated corporations own registered trademarks of VEUVE CLIQUOT
in many countries, including France and the United States. Veuve
Cliquot champagne has been the subject of many articles and other literary
works. It has featured in many famous movies. The Complainant
has invested much money, time and effort to develop and promote Veuve Cliquot
champagne worldwide. Veuve Cliquot is recognized as a leading champagne
in many authoritative works on wine.
There is no
relationship between the Complainant and the Respondent which would give
rise to any licence or permission for the Respondent to use the name Veuve
Cliquot. Nor is there any evidence that the Respondent is known by
a nickname of that sort.
The Respondent
has posted a website at the URL "http:\\veuvecliquot.org" which states
that the domain name is not in use but that "individuals or entities with
a property interest in the domain name and interested in developing it
should contact the registrant directly by email rdc@thepolygenixgroup.com."
The Complainant
alleges that the Respondent under the names The Polygenix Group or The
Polygenix Group Co. is in the business of trafficking in domain names.
A search as at March 7, 2000, shows that the Respondent has over 100 domain
names on offer, including a large percentage of third-party trademarks
and/or service marks. Included in this list are "BLUENUN.NET" and
"DUBOEUF.ORG", both trademarks for wine.
The Respondent
states on its website its intention to sell domain names for profit thus:
"hi, we sell a whole bunch of Great Domain Names that you might be VERY
interested in".
5. Parties'
Contentions
The Complainant
submits that the only possible conclusion must be the Respondent is using
its world-famous mark, VEUVE CLIQUOT, in bad faith. The facts (a)
that the Respondent seeks expressions of interest in developing the domain
name from those with "a property interest"; and (b) that the Respondent
has offered other well-known marks for sale as domain names, underscores
the inevitable conclusion of bad faith.
The Respondent
has made no submissions.
6. Discussion
and Findings
Paragraph 15(a)
of the Rules instructs the Panel to:
"decide a complaint
on the basis of the statements and documents submitted in accordance with
the policy, these rules and any rules and principles of law that it deems
applicable".
The burden
for the Complainant, under paragraph 4(a) of the ICANN Policy, is to show:
· That
the domain name registered by the Respondent is identical or confusingly
similar to a trademark or service mark in which the Complainant has rights;
and
· That
the Respondent has no rights or legitimate interests in respect of the
domain name; and
· That
the domain name has been registered and is being used by the Respondent
in bad faith.
The domain
name "VEUVECLIQUOT.ORG" is obviously identical or confusingly similar to
the Complainant's mark. The Panel so decides.
Likewise, the
Panel decides that the Respondent has no rights or legitimate interests
in the domain name at issue. The Respondent has never suggested to
the contrary.
Paragraph 4(b)
of the ICANN Policy states:
"For the purposes
of Paragraph 4(a)(iii), the following circumstances, in particular but
without limitation, if found by the Panel to be present, shall be evidence
of the registration and use of a domain name in bad faith:
(i) circumstances
indicating that you have registered or you have acquired the domain name
primarily for the purpose of selling, renting, or otherwise transferring
the domain name registration to the complainant who is the owner of the
trademark or service mark or to a competitor of that complainant, for valuable
consideration in excess of your documented out-of-pocket costs directly
related to the domain name; or
(ii) you have
registered the domain name in order to prevent the owner of the trademark
or service mark from reflecting the mark in a corresponding domain name,
provided that you have engaged in a pattern of such conduct; or
(iii) you have
registered the domain name primarily for the purpose of disrupting the
business of a competitor; or
(iv) by using
the domain name, you have intentionally attempted to attract, for commercial
gain, Internet users to your 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 your web site or location or
of a product or service on your web site or location."
It should be
noted that the circumstances of bad faith are not limited to the above.
The Panel considers
that the Respondent has registered and used the domain name "VEUVECLIQUOT.ORG"in
"bad faith" for the following reasons:
(a) "VEUVECLIQUOT.ORG"
is so obviously connected with such a well-known product that its very
use by someone with no connection with the product suggests opportunistic
bad faith.
(b) The Respondent's
offer to treat with persons with a "property interest" in this domain name
is powerful evidence of bad faith: see the decisions in WIPO Center cases
of Harrods Ltd v. Boyd (Case No. D2000-0060), China Ocean Shipping (Group)
Co. Ltd v. Cao Shan Hui (Case No. D2000-0066). This case is very
similar to the Harrods case where the Respondent had sought to sell a domain
name in an attempt to capitalize on a name well-known throughout the world.
The present
situation is similar to that in Educational Tertiary Service v. TOEFL (WIPO
Case D2000-0044) where the learned Panelist said:
"The value
which Respondent seeks to secure from sale of the domain name is based
on the underlying value of Complainant's trademark. This value is
grounded in the right of Complainant to use its mark to identify itself
as a source of goods or services. Respondent has failed to establish
any legitimate domain name-related use for Complainant's trademark, in
a context in which such legitimization might be possible. The Respondent
having failed to present any such justification, the Panel may reasonably
infer that Respondent neither intended to make nor has made any legitimate
use of Complainant's trademark in connection with the [domain name at issue."
Accordingly,
for all the various reasons discussed above, the Panel finds that the domain
name "VEUVECLIQUOT.ORG" has been registered and is being used by the Respondent
in bad faith.
7. Legal
Considerations
Although entitled
to consider principles of law deemed applicable, the Panel finds it unnecessary
to do so in any depth. The jurisprudence which is being rapidly developed
by a wide variety of Panelists world-wide under the ICANN Policy provides
a fruitful source of precedent.
The Panel notices,
however, that Courts in the United States have come to similar conclusions
about those who act in a manner similar to the Respondent who endeavor
to sell domain names to trademark owners for a profit: see Panavision International
LP v. Toeppen, 141 F.3d 1315 (9th Circ. 1998).
8. Decision
For the foregoing
reasons, the Panel decides:
(a) that the
domain name registered by the Respondent is identical or confusingly similar
to the trademark to which the Complainant has rights;
(b) that the
Respondent has no rights or legitimate interests in respect of the domain
name; and
(c) the Respondent's
domain name has been registered and is being used in bad faith.
Accordingly,
pursuant to paragraph 4(i) of the Policy, the Panel requires that the registration
of the domain name "VEUVECLIQUOT.ORG" be transferred to the Complainant.
Hon Sir Ian
Barker QC
Presiding
Panelist
Dated:
May 1, 2000
Domain
Name Transferred
