The Complainant is V & S Vin & Sprit AB of Stockholm, Sweden, represented by von lode advokat ab, Sweden.
The Respondent is Direct Privacy ID 1A7A0, Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <absolutabuse.com> is registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 5, 2010. On May 6, 2010, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the disputed domain name. On May 6, 2010, Intercosmos Media Group d/b/a directNIC.com 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 May 11, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 31, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on June 1, 2010.
The Center appointed Dennis A. Foster as the sole panelist in this matter on June 8, 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.
4. Factual Background
The Complainant is a long-established Swedish company that markets premium alcoholic beverages. It owns one of the most famous trademarks in the world, ABSOLUT, for its brand of vodka. The Complainant has many valid registrations for the mark, including: a Swedish registration (Registration No. 0211697, issued August 5, 1988); a Community Trade Mark (“CTM”) registration (Registration No. 001521681, issued June 19, 2001); and a United States Patent and Trademark Office (“USPTO”) registration (Registration No. 3163067, issued October 24, 2006).
The Respondent registered the disputed domain name, <absolutabuse.com>, on December 22, 2003. The Respondent uses the name to host a website that offers pornographic material to Internet users.
5. Parties' Contentions
A. Complainant
Founded in 1917, the Complainant is a Swedish company that manufactures and distributes alcoholic beverages. Its products are marketed on an international basis, and its brand, “Absolut Vodka”, ranks fourth in world sales for premium spirits. Sales of that brand in 2007 achieved 10.7 million nine-liter cases in 126 countries.
The Complainant owns hundreds of trademark registrations throughout the world for the mark ABSOLUT, including Swedish, CTM and USPTO registrations. In 2001, the ABSOLUTE mark was rated as the 93rd most valuable trademark asset in the world, and the Complainant's advertising of the mark has been noted as one of the best advertising campaigns over the last century.
The Complainant has also registered, among others, the domain name <absolut.com> to assist in the promotion of its products.
The disputed domain name, <absolutabuse.com>, is confusingly similar to the Complainant's mark, as the name incorporates the full mark with the generic word “abuse” and the gTLD “.com”. The disputed domain name gives the overall erroneous impression that it is somehow connected with the Complainant and its trademark.
The Complainant's registration of its trademark predates the registration of the disputed domain name, and the Complainant has not authorized the Respondent to use that mark in any manner. The Complainant is not affiliated or connected with the Respondent in any way.
The Respondent uses the disputed domain name to host a website that displays pornographic material, which tarnishes the Complainant's trademark rights because of the confusing similarity between the name and the trademark.
The disputed domain name was registered and is being used in bad faith. Undoubtedly, the Respondent knew of the Complainant's world famous mark at the time the disputed domain name was registered.
The Respondent's intent is to capitalize on the goodwill associated with the mark to drive Internet users to the Respondent's pornographic offerings. The Respondent is therefore exploiting the confusion of Internet users for the Respondent's financial gain.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Pursuant to paragraphs 4(a)(i) – (iii) of the Policy, the Complainant may prevail in these proceedings and obtain a transfer of the disputed domain name, <absolutabuse.com>, if the Complainant can demonstrate that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Given the evidence (Complaint Annexes 5, 6 and 7) of its valid Swedish, CTM and USPTO trademark registrations for its trademark ABSOLUT as submitted to the Panel, the Complainant has satisfied the requirement that it has rights in that mark per paragraph 4(a)(i) of the Policy. For other UDRP decisions arriving at the same conclusion, see, V & S Vin & Sprit v. Coreswood Ltd.,
WIPO Case No. D2006-0594; V & S Vin & Sprit v. Canal Prod Ltd.,
WIPO Case No. D2002-0437; V & S Vin & Sprit v. Oliver Garcia,
WIPO Case No. D2002-1081; and V & S Vin & Sprit AB v. Giovanni Pastore,
WIPO Case No. D2002-0926.
The Panel observes that the disputed domain name, <absolutabuse.com>, captures the Complainant's full trademark, adding to it the simple generic term “abuse” and the gTLD “.com”. There have been countless Policy panels that have determined that the mere addition of a generic term and an obligatory gTLD to a complainant's full mark do not distinguish a disputed domain name from that mark sufficiently to preclude a finding that the name is confusingly similar to the mark. See, American Express Company v. MustNeed.com, NAF Claim No. FA257901 (finding the respondent's <amextravel.com> domain name confusingly similar to the complainant's AMEX mark because “[t]he mere addition of a generic or descriptive word to a registered mark does not negate the confusing similarity of Respondent's domain name pursuant to Policy [paragraph] 4(a)(i).”); and Coreswood Ltd., supra (“The Panel finds that the addition of a generic word to the well-known mark does not alter the fact that the domain name is confusingly similar to the mark.”).
In this case, the Panel recognizes that argument could be made – although the Respondent in not filing a Response has not done so – that the term “abuse” is negative and thus Internet users might naturally disassociate the disputed domain name from the trademark owner. However, the Panel concludes that “abuse” is not so obviously a derogatory term as “sucks”, and that the majority of prior Policy panels have sustained findings of confusingly similarity when considering disputed domain names containing a trademark and the word “sucks” for various reasons. See, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions; Wachovia Corporation v. Alton Flanders,
WIPO Case No. D2003-0596; and Wynn Resorts Holdings, LLC v. Dave Walton, NAF Claim No. FA1072983. Therefore, the Panel shall apply the reasoning of said majority and rule that the disputed domain name is confusingly similar to the Complainant's trademark.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant has asserted that it has not authorized the Respondent to use the Complainant's trademark, a mark with which the Panel has found the disputed domain name to be confusingly similar. Thus, the Complainant has put forth a prima facie case that the Respondent has no rights or legitimate interests in that name, meaning that the Respondent must come forward with clear evidence in rebuttal. See, AOL LLC v. Jordan Gerberg, NAF Claim No. FA780200 (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); and Do The Hustle, LLC v. Tropic Web,
WIPO Case No. D2000-0624.
The Respondent, having not filed a Response, has come forward with no case at all. Examining the record elsewhere for possible evidence that the Respondent has rights or legitimate interests in the disputed domain name, the Panel can find none. The three criteria listed in paragraph 4(c) of the Policy, which might have assisted the Respondent on this issue, appear to the Panel to be inapplicable given the reasonable contentions proffered by the Complainant. The Panel feels compelled to accept those contentions as true in the absence of a Response. See, Randstad General Partner (U.S.), LLC v. Domains For Sale For You,
WIPO Case No. D2000-0051 (“Because Respondent has failed to submit an answer to the Complaint in a timely fashion, and because the allegations of the Complaint, taken on their face, engender no substantial doubt, the Panel accepts as true all allegations set forth in the Complaint.”); and Vertical Solutions Management, Inc. v. webnet-marketing, inc., NAF Claim No. FA95095.
The Complainant contends and the Panel accepts that the Respondent is using the disputed domain name to offer Internet users pornographic material. That use is certainly not legitimate noncommercial or fair use of the domain name, hence the criterion listed in paragraph 4(c)(iii) does not apply in the Respondent's favor. Moreover, the Panel, in line with previous UDRP panels, determines that the Respondent's use of the disputed domain name for pornographic offerings fails to constitute a “bona fide offering of goods or services” as required under paragraph 4(c)(i). See, for example, Microsoft Corporation v. Phayze Inc.,
WIPO Case No. D2003-0750; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin,
WIPO Case No. D2002-0440; and Eric Cummings dba LabSmith v. Sepuelveda Ventures, NAF Claim No. FA100362 (“Respondent's use of the identical domain name as a link to a pornographic website is not a bona fide offering of goods.”). Finally, the Panel discerns absolutely no evidence that the Respondent is commonly know as the disputed domain name, negating any possible applicability of the criterion found in paragraph 4(c)(ii) to this case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Panel has already determined above that the disputed domain name is confusingly similar to the Complainant's trademark, ABSOLUT. Accepting the Complainant's contention and based on its own independent knowledge, the Panel finds that the Complainant's trademark is one of the most famous in the world. Moreover, per another of the Complainant's contentions, the Panel also concludes that, the Respondent has no relationship or affiliation with the Complainant. These two considerations lead the Panel to find that the Respondent has registered and is using the disputed domain name in bad faith. See, AT&T Corp., supra (“Registration of a domain name that is confusingly similar to a famous trademark by any entity which has no relationship to that mark is itself sufficient evidence of bad faith registration and use.”); and The Caravan Club v. Mrgsale, NAF Claim No. FA95314 (“Registration of a well-known trademark by a party with no connection to the owner of the trademark and no authorization and no legitimate purpose to utilize the mark reveals bad faith.”).
Accordingly, the Panel finds that the Complainant has satisfied the requirements of Policy paragraph 4(a)(iii).
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, <absolutabuse.com>, be transferred to the Complainant.
Dennis A. Foster Sole Panelist
Dated: June 22, 2010
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