V&S &
Sprit Aktiebolag v. IEC, Inc. a/k/a Kenny Bartel
Claim Number: FA0106000097369
PARTIES
Complainant is V&S Vin & Sprit Aktiebolag, Stolkholm, Sweden
(“Complainant”) represented by Joanne
Ludovici-Lint of McDermott, Will
& Emery. Respondent is Kenny Bartel IEC, Inc., Ellicott City,
MD, USA (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <absolutpussy.com> registered with Register.com.
PANEL
On July 6, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 5, 2001; the Forum received a hard copy of the Complaint on June 6, 2001.
On June 6, 2001, Register.com confirmed by e-mail to the Forum that the domain name <absolutpussy.com> is registered with Register.com and that Respondent is the current registrant of the name. Register.com has verified that Respondent is bound by the Register.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 7, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 27, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@absolutpussy.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.” Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Respondent’s domain name <absolutpussy.com> is confusingly similar to Complainant's U.S. federally registered trademark ABSOLUT.
Respondent has no rights to or legitimate interest in the domain name <absolutpussy.com>.
Respondent is not commonly known by the name “ABSOLUT” or <absolutpussy.com> either as a business, individual, or other organization.
Further, Respondent is not making a legitimate noncommercial or fair use of the domain name.
Respondent is not using the domain name in connection with a bona fide offering of products or services.
There is substantial evidence of bad faith registration and use of the domain name by Respondent.
B. Respondent
No Response was submitted.
FINDINGS
Complainant owns over 15 U.S. federally registered trademarks on the Principal Register for ABSOLUT, alone and in combination with other terms and designs, including registrations for the ABSOLUT bottle design and the seal found upon each bottle. Many of these U.S. federal registrations have achieved “incontestable” status under the U.S. Lanham Act. 15 U.S.C. §§ 1065 and 1115(b). Complainant's “incontestable” federal registrations serve as “conclusive evidence of the validity of the registered mark[s] and of registration of the mark[s], of [Complainant's] ownership of the mark[s], and of [Complainant's] exclusive right to use the mark[s] in commerce” 15 U.S.C. § 1115(b). Complainant also owns registrations for the trademark ABSOLUT in approximately 130 other countries throughout the world.
Complainant uses
the trademark ABSOLUT in conjunction with several Internet web sites, including
<absolutvodka.com> and <absolut.com>. Complainant uses these web sites to promote its products and
services over the Internet. Complainant
owns a U.S. federal registration for ABSOLUT for providing information and
entertainment by means of a global computer network.
For many years, Complainant has featured the trademark ABSOLUT in block lettering on every bottle of ABSOLUT vodka and in advertising. For decades, Complainant, through its distributors, has been advertising and promoting its ABSOLUT vodka throughout the United States. In 1981, Complainant introduced a unique and distinctive advertising campaign to promote its ABSOLUT vodka, wherein Complainant’s advertisements prominently feature the trademark ABSOLUT in block text, often followed by a common word (e.g., ABSOLUT FASHION). That advertising campaign has earned numerous awards and substantial recognition. The ABSOLUT advertising campaign is internationally famous.
Respondent registered the domain name <absolutpussy.com> in October 1999.
Respondent is in no way affiliated with Complainant. They are not licensed to use the mark ABSOLUT, nor do they have any contractual or other relationship with Complainant that would entitle them to use the mark ABSOLUT.
The disputed domain name resolves to a hard-core pornographic website, which includes sexually graphic banner advertisements. The website also mimics Complainant’s famous advertisements incorporating its distinctive bottle.
DISCUSSION
Paragraph
15(a) of the Rules instructs this 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.”
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the
Respondent has no rights or legitimate interests in respect of the domain name;
and
(3) the domain name has been registered and is being used in bad faith.
The disputed domain name <absolutpussy.com> is confusingly similar to Complainant's U.S. federally registered trademark ABSOLUT. Adding the word “pussy” does not mitigate that confusion, particularly where as here, the remainder of the domain name (i.e., ABSOLUT) is a famous trademark with no non-trademark significance. See Out2com, Inc. v. Rustom Corp., FA 95896 (Nat. Arb. Forum Dec. 20, 2000) (finding the addition of generic words to a mark does not create a distinct new domain name and the domain names <out2travel.com> and <out2themovies.com> were confusingly similar to Complainant's mark OUT2 because they consist of Complainant's mark plus generic words); see also Victoria’s Secret et al. v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (adding the term “models” to the registered mark VICTORIA’S SECRET does not circumvent the Policy’s “identical or confusingly similar” test); see also L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (combining the generic word “shop” with Complainant's registered mark LL BEAN did not circumvent the Complainant's rights in its mark nor avoid the confusing similarity aspect of the Policy 4(a)(i) with respect to the domain name <shopllbean.com>).
Therefore, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
Respondent has failed to come forward to demonstrate any rights or legitimate interests in the <absolutpussy.com> domain name. See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests).
Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to the domain name in dispute where Respondent fails to submit a response. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that “Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names”).
Complainants have established that Respondent was not making a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). Respondent used the domain name in conjunction with pornographic services that are not considered to be noncommercial or fair use. Nor is such use a bona fide offering of goods or services under Policy ¶ 4(c)(i). See National Football League Properties, Inc., et al. v. One Sex Entertainment Co., D2000-0118 (WIPO Apr. 17, 2000) (finding that the Respondent has no rights or legitimate interests in the domain names <chargergirls.com> and <chargergirls.net> where the Respondent linked these domain names to its pornographic website).
Complainant has successfully alleged that Respondent is not commonly known by the disputed domain name, and Respondent has not come forward with any evidence to the contrary pursuant to Policy ¶ 4 (c)(ii).
Therefore, the Panel determines that Complainant has established its burden set forth under Policy 4(a)(ii).
Registration and
Use in Bad Faith
Respondent has intentionally attempted to
attract, for commercial gain, Internet users to its website, by creating a
likelihood of confusion with Complainant’s mark as to the source, sponsorship,
affiliation or endorsement of its website, which is bad faith under Policy ¶
4(c)(iv). See Land O' Lakes Inc. v. Offbeat Media Inc., FA 96451(Nat. Arb.
Forum Feb. 23, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where
Respondent utilized a domain name confusingly similar to the Complainant’s mark
and used a pornographic depiction confusingly similar to Complainant’s
registered trademark on its website that may cause confusion as to the source
or affiliation of the site).
Therefore, the Panel concludes that Complainant has met the burden set forth under Policy 4(a)(iii).
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <absolutpussy.com> be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: July 10, 2001
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