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| Autor | Beitrag 316 - 330 |
|---|---|
| DubischauenickFr 8.6.07, 14:14 | yeah xD Discussion and Findings The Complaint centers around the provisions of Article 21 of Regulation 874/2004, specifically subsections 21(1)-(3). My approach to Article 21(1) is a two-step process. First, looking at the demonstration of the rights on which the Complaint rests and, second, the issue of any claim the domain name holder may have to legitimate or good faith usage. I shall deal with these two aspects in turn. Looking at the rights established by national or community law, the Complainant has based its claim on both its company name and its registered trade mark rights. The Respondent has not challenged or questioned the Claimant’s rights in either respect. The Complainant appears to have confused the relationship and identities of the respective companies cited (namely, registration no’s 4322832 and 4092510). However, looking at the information submitted, it seems clear enough that the correct company is registration number 4092510, which was previously The Amateur Swimming Association of Great Britain Limited but which changed its name to British Swimming Limited on 24th January 2006. The Complaint is therefore correctly made in the name of British Swimming and the rights in respect of the company name are supported by the evidence. Regarding trade mark rights, the Complainant provided a copy of the registration certificate for registered trade mark no. 2271770, registered on 6 June 2001. The registration certificate cites the owner as the Amateur Swimming Association of Great Britain Limited, which changed its name as explained above. Although the Complainant has omitted reference to “Limited” in its Complaint, it appears on balance that the Complainant is the owner of the registered trade mark. It is clear from Article 21(1) (which refers, in turn, to Article 10(1)) that a registered trade mark will suffice as prima facie proof of a national or community right. However, the trade mark cited by the Complainant is a combined word and device mark, consisting of the words “British Swimming” and a stylized ‘wave’ device. Section 19 of the Sunrise Rules offers us some guidance in how to view such combined marks. Although concerned with Prior Rights, Section 19 states that if a right is claimed in a composite sign, it will only be accepted if “the word element is predominant, and can be clearly separated from the device element”. Having considered the form of the mark, as depicted on the registration certificate submitted by the Complainant, I consider that the word element is indeed the predominant part of the mark and is clearly separable from the device component. However, we cannot conclude the discussion regarding the trade mark without considering the Respondent’s claim that the mark is generic. In this respect, the Complainant cited a number of WIPO decisions which relate to the issue of the rights in respect of generic or descriptive marks. I do not have the scope to consider these decisions in detail here but I have reviewed them and have taken them into consideration . I am also aware of WIPO’s guidance in this respect; namely that “If the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under Paragraph 4(c) of the Policy, then the respondent may lack a legitimate interest in the domain name, even if it is a domain name comprised of a generic word(s)”. I therefore do not consider that any descriptive content in the mark is sufficient to either undermine the Complainant’s rights entirely or to prevent a proper consideration of the legitimacy or otherwise of the Respondent’s use of the domain. The Claimant maintains that the Respondent has no legitimate interest in the name pursuant to Article 21(2)(a)-(c) and/or has demonstrated bad faith pursuant to Article 21(3)(e) and requests that the domain be revoked under Art 21(1). The Respondent’s response to the Claim rests, in the most part, on the website which the Respondent has developed and which is located at www.5.org.cn. The Respondent asserts that this website, which is entitled “British Swimming Gallery”, was created as a hobby and demonstrates that she has rights or legitimate interests in the domain, it has no commercial advertisements on it and will not mislead consumers. The Respondent states that the website has provided services but she has not explained what these services are. We are therefore concerned with Art's 21(2)(a) and (c), as the Respondent has not submitted evidence in support of legitimacy pursuant to Art 21(2)(b). The Respondent, who appears to be a Chinese woman resident in the UK, makes no other claims to a legitimate interest in the name and would appear to have no personal, company or other connection with the name apart from the website referred to and any related services. I have therefore looked at the cited website very closely. It is a kind of posting site, where those interested in swimming or swimming pools may post photographs. It also contains a facility to enable users to make comments or post messages but this facility does not seem to have been used to any great degree. The majority of the photos on the website seem to be of children swimming but there are also some pictures of animals swimming and also some pictures of various types of swimming pools. The site itself appears to be a standard, free, readily downloadable version available from http://coppermine-gallery.net. The photos also appear to be of the type readily downloadable from the internet and the site appears to have little personalization or real active input. Somewhat unusually, the postings to the site are prominently dated, appearing to be from times both prior to and after the application for or ownership of the domain in question. Overall, I am not convinced by the website. It has the look and feel of something put together quickly, with little or no real traffic or interested activity. I am not convinced by it as any kind of genuine demonstration of legitimate interest or right in the name. There are no goods offered or sold via the site and I consider it would be stretching things to say that the site provides services. The Respondent herself has said that “the domain name britishswimming.eu is unimportant for the Respondent.” It strikes me that there is nothing specifically British about the site, other than perhaps the fact that the respondent is based there. The Respondent could easily, and perhaps more appropriately, have applied for domains which referenced the name ‘British Swimming Gallery’; which domains appear to be available in all forms at the time of writing this decision, including .com and .co.uk versions. While the Claimant has established its rights, I consider the Respondent has failed to demonstrate any legitimate interest or right in the domain name. I have therefore decided that the domain should be revoked. The Claimant has also asked for the transfer of the domain but I cannot agree to do so. The Claimant is listed as British Swimming and Ashley Cox. Mr Cox has not proven his locus standii and the while I have exercised a degree of discretion concerning the Claimant being shown as British Swimming, it would not be appropriate to transfer the name until British Swimming Limited alone has applied in a full and accurate manner via an approved registrar. The request for transfer is therefore denied. Finally, the Claimant’s claims in relation to Art 21(3)(e) appears to be poorly founded. The domain name is not a personal name and the Claimant’s claims in this respect are rejected. I also consider that the Complainant’s claims with regard to rights in the domain www.britishswimming.org have no merit. |
| checcaFr 8.6.07, 20:43 | also wenn du jetzt in dr mitti vo dr brugg gseh bisch wo dr hagel agfange het... denn hesch arschkarte... vorallem mit eme kinderwage^  |
| MythINCFr 8.6.07, 22:14 | chöntsch jo de kinderwage umkehre und ihn als schirm bruche |
| checcaFr 8.6.07, 22:14 | und s kind macht kopfschtand? |
| MythINCFr 8.6.07, 22:15 | lernt laufe bzw renne |
| checcaFr 8.6.07, 22:15 | löl und die andere wo voll hektisch entgege renne vrtrampes? |
| MythINCFr 8.6.07, 22:17 | s kind lernt sich dure z setze oder au nit |
| checcaFr 8.6.07, 22:35 | du hesch e huli gen oder? |
| MythINCFr 8.6.07, 22:38 | nei, i ha es bier gen |
| checcaFr 8.6.07, 22:38 | ich häts gärn |
| MythINCFr 8.6.07, 22:43 | muesch bier trinke, hesch die grillfest gha? |
| checcaFr 8.6.07, 22:44 | jop isch luschtig gseh  |
| MythINCFr 8.6.07, 22:45 | tenpack furt |
| checcaFr 8.6.07, 22:45 |  |
| MythINCFr 8.6.07, 22:47 |   |
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