v.
Domain ID, Inc
[Indexed as: Tryg-Baltica v. Domain ID, Inc]
[Indexed as: TRYG-BALTICA.com]
WIPO Arbitration and Mediation Center
Administrative Panel Decision
Case No. WIPO D2000-0645
Commenced: July 4, 2000
Judgment: November 7, 2000
Sole Panelist: David Perkins
Domain name - Domain name dispute resolution policy - Denmark Service Mark - Identical - Confusingly similar - Bad faith registration - Bad faith use - Web site not developed - Domain name not offered for sale - inactivity as bad faith - Service Mark synonymous with the Complainant insurance company - Delay - Continued maintenance of domain name registration does not create a legitimate interest in the name.
Complainant is a Danish insurance Company holding registered Danish Service Marks for TRYG-BALTICA. Complainant holds various domain names which incorporate its Service Mark, including domain names which are very similar to the domain name in issue. Respondent is an Internet based company carrying on business in New York. Respondent claims it registered the disputed domain name, "tryg-baltica.com" with a specific project in mind, but refused to give details of that project on the basis that the project was a trade secret. Respondent held the domain name for four years before the complaint was brought and maintained registration during that time, but did not develop a site. Respondent claimed that the Complainant was estopped from its claim because of the delay.
Respondent was involved in a Danish court action in which it was found that Respondent was in the practice of registering the domain names of well known Danish companies and trademarks, and then selling the domain names for consideration in excess of out of pocket expenses. This pattern of conduct was found to be in contravention of fair trading practices under the Danish Marketing Practices Act.
Respondent did not offer the disputed domain name for sale to Complainant, though Complainant did make an offer to buy.
Held, Name Transferred to Complainant
The addition of www. and .com do not differentiate the domain
name in issue from a name which is otherwise identical to a registered
trademark. These additions are disregarded by the Panel.
Delay on the part of Complainant must be considered in light of
all the circumstances. More emphasis will be given to delay if Respondent
is actively using the domain name in connection with a site. However,
the presence of judicial proceedings which would establish a pattern of
conduct on the part of Respondent may justify the delay if Complainant
is waiting for the outcome of the proceedings.
The Panel rejects Respondent's case that Complainant is adequately
served by other domain names as not relevant to paragraph 4a(ii) of the
Policy. Respondent's assertion that continued maintenance etc of
the domain name constitute legitimate interests is also rejected by the
Panel.
Respondent has failed to produce in the Response a convincing explanation
to rebut the finding of the Danish Court. The Panel concludes, on the balance
of the similar fact evidence presented by the Complaint and not convincingly
rebutted by Respondent, that the domain name in issue was registered in
bad faith. Further, it is just not credible that Respondent, who professes
ignorance of all things Danish, should register as a domain name either
the name of well known Danish Insurance Company or the Danish language
equivalent of "safe Baltic Area".
Bad faith use is demonstrated by Respondent's lack of rights or
legitimate interests in the domain name in issue, by the pattern of conduct
established by the judgment of the Danish Court and by the contradictory
assertions made in the Response (identified in this Decision. Inaction
can constitute use in bad faith for the purposes of paragraph 4a(iii) of
the Policy, provided that there are convincing indicia of bad faith by
Respondent.
Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999
Panel Decisions Referred to
Bosco Products Inc .v. Bosco E-Mail Service, Case FA94828 (Nat Arb.
Forum).
Bridgestone Firestone Inc & Others .v. Jack Myers, Case D2000-0190
(WIPO).
The Channel Tunnel Group Limited .v. John Powel, Case D2000-0038 (WIPO).
Cases Referred to
Beologic decision of the Danish Courts, November 26, 1999
Perkins, Panelist: -
1. The Parties
The Complainant is Tryg-Baltica Forsikring Skadesforsikringsselskab
A/S of Klausdalsbrovej 601, DK-2750 Ballerup, Denmark.
The Respondent is Domain ID, Inc c/o domainID.com, formerly of P O
Box 165, 245 8th Avenue, New York, NY 10011, United States of America and
now of Suite # D289, 244 Fifth Avenue, New York, NY 10001, United States
of America.
2. The Domain Name and Registrar
The domain name in issue is "tryg-baltica.com"
and the Registrar is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center [the Center] received the
Complaint on June 21, 2000, [electronic version] and on June 26, 2000,
[hard copy]. The Center verified that the Complaint satisfies the formal
requirements of the ICANN Uniform Domain Name Dispute Resolution Policy
[the Policy], the Rules for Uniform Domain Name Dispute Resolution Policy
[the Rules], and the Supplemental Rules for Uniform Domain Name Dispute
Resolution Policy [the Supplemental Rules]. The Complainant made the required
payment to the Center.
The formal date of the commencement of this administrative proceeding
is July 4, 2000.
On June 26, 2000, the Center transmitted via email to Network Solutions,
Inc a request for registrar verification in connection with this case and
on July 3, 2000, to Network Solutions, Inc transmitted by email to the
Center Network Solution's verification response confirming that the registrant
is Domain ID, Inc and that the contact for both administrative and billing
purposes is domainID.com.
Having verified that the Complaint satisfied the formal requirements
of the Policy and the Rules, the Center transmitted on July 4, 2000, to
[email protected];
[email protected]; and
[email protected]
this Notification of Complaint and Commencement of the Administrative
Proceeding. The Center advised that the Response was due by July 23, 2000.
On the same day the Center transmitted by fax and by mail copies of the
foregoing documents to:
Domain ID, Inc (TRYG-BALTICA-DOM)
c/o domainID.com
P O Box 165
245 8th Avenue
New York
NY 10011
United States of America
The Response was received on August 4, 2000, [electronic version] and
because that version was not legible on August 14, 2000, a further electronic
version was received. Acknowledgement of Receipt of Response was sent by
the Center on August 14, 2000, using the same contact details and methods
as were used for Notification of Complaint and Commencement of the Administrative
Proceeding.
Prior to that, on July 18, 2000, the Respondent advised the Center
by email of a change of address to
domainID.com
244 Fifth Avenue
Suite # D289
New York
NY 10001
United States of America
and that, as a result of both that change and absence on summer vacation,
notification of the Commencement of this Administrative Proceeding had
only just been received.
The Respondent requested an extension of time for service of its Response
and that the Complaint be sent by courier to its new address (above). The
Center replied on the same day and a further copy of the Complaint was
despatched to the Respondent at that address. On July 21, 2000, the Center
advised the Respondent that its request that time for Response be extended
to August 4, 2000, was granted.
Because the Response received in electronic form by the Center on August
4, 2000, was incomplete [the Center was unable to open the attachments
to the Response], on August 7, 2000, the Center requested the Respondent
to resend the attachments. The Response [hard copy] was eventually received
by the Center on August 24, 2000.
On August 31, 2000, the Complainant provided the Center with an English
language translation of Annex 3 to the Complaint.
The Respondent transmitted to the Center on September 11, 2000, [email]
and on September 13, 2000, [fax] its objection to the Panellist appointed
by the Center. The Center replied on September 18, 2000, that it would
appoint a new Panellist in this case.
Having received on October 6, 2000, Mr David Perkins' Declaration of
Impartiality and Independence and his Statement of Acceptance, the Center
transmitted to the parties a Notification of Appointment of Administrative
Panel and Projected Decision Date, in which Mr David Perkins was formally
appointed as the Sole Panellist. The Projected Decision Date was October
18, 2000. The Sole Panellist finds that the Administrative Panel was properly
constituted and appointed in accordance with the Rules and the Supplemental
Rules.
Having reviewed the communication records in the case file, the Administrative
Panel finds that the Center has discharged its responsibility under paragraph
2(a) of the Rules "to employ reasonably available means calculated to achieve
actual notice to Respondents". Therefore, the Administrative Panel shall
issue its Decision based upon the Complaint, the Response, the Policy,
the Rules and the Supplemental Rules.
4. Factual background
4.1 The Complainant
The Complainant, Tryg-Baltica Forsikring Skadesforsikringsselskab A/S,
is a Danish Insurance Company.
4.2 The Respondent
The Respondent, Domain ID, Inc. describes itself as a five year old
Internet based company, incorporated under New York State law and doing
business only in the State of New York. The Respondent states that it is
"
working with the world's largest web hosting company VERIO".
4.3 The Complainant's Trade Marks
The Complainant is the owner of the following trade mark registrations:
Country Registration No Mark Goods / Services
Date
Denmark VR 1996 3330 TRYG-BALTICA 36 Filed
May 25, 1995 Registered June 17, 1996
Denmark VR 1996 3331 TRYG-BALTICA FORSIKRING 36
Filed May 25, 1995 Registered June 17, 1996
Both of the above service marks were applied for and registered before
registration of the domain name in issue on October 14, 1996. The Complainant's
claim that the name and mark TRYG-BALTICA is generally recognised in Denmark
as being synonymous with the Complainant's insurance company.
4.4 The Respondent submits that the Complainant's TRYG-BALTICA name
and mark translates in English to "safe Baltic Area", which is essentially
descriptive of an insurance company doing business in / located in the
Baltic Area. The word "tryg" (safe) is, for example, used by another Scandinavian
insurance company TrygHansa AB, "Hansa" denoting the Hanseatic towns of
the Baltic Area. The Respondent's case is, therefore, that the Complainant's
name and mark does not constitute "a trademark or service mark" for the
purposes of the Policy, because "their name is a weak generic word taken
from the dictionary".
5. Parties' Contentions
5.1 Complainant
The Complainant contends that the domain name in issue is identical
and confusingly similar to the Complainant's TRYG-BALTIC name and mark,
that the Respondent has no rights or legitimate interests in respect of
the domain name and that it was registered and is being used in bad faith.
5.2 Respondent
5.2.1. As to the first of the Complainant's contentions, the Respondent
counters on 4 grounds.
First, that the Complainant's TRYG-BALTICA name and mark is generic
and does not constitute a trademark or service mark as required by the
Policy.
Second, that in any event, the domain name is not identical or confusingly
similar by reason of the additions of "www" and ".com".
Third, that as to "confusingly similar", it is entirely possible "
that two or more companies
can co-exist using the same or similar name,
as long as the existence is based upon non-competing areas of business".
Fourth, that having co-existed since the domain name in issue was registered
in October 1996 the Complainant is now too late to complain that its marks
and the domain name in issue are confusingly similar.
5.2.2 As to the second of the Complainant's contentions, the Respondent
counters as follows:
First, the Respondent maintains that "
the only real requirement concerning
the use and maintenance of domain names in the .com, .net and .org field"
is that "
the domain name must be connected to two or more servers that
are in active use and connected to the Internet".
Second, the Respondent states that "we are in fact ourselves using
the domain name in question" which "we have used in a serious and positive
manner for four years and to no detriment to anybody else". In that respect,
the Respondent does not identify what such use is other than that it is
"for our own private purposes" and that:
"We are alone a company serving only one larger company here in New
York with e-commerce solutions and general IT solutions".
Third, that the Complainant is already adequately equipped and able
to conduct its business using other domain names of which it is the proprietor,
namely;
"www.tryg-dk" registered July 1, 1996
"www.trygbaltica.dk" registered June 22, 2000
"www.tryg-baltica.dk" registered July 1, 1996
"www.baltica.dk" registered December 17, 1996
"www.trygbaltica.com" registered November 16, 1996
"www.tryg.net" registered January 13, 2000
"www.tryg.org" registered March 27, 2000
of which "www.tryg.dk" is the main domain name used by the Complainant
to inform visitors of its business.
Fourth, that "the Respondent has a whole range of ideas and projects
ready" but these are trade secrets which it will not divulge.
Fifth, that "legitimate interests" are satisfied by:
"
the continued registration, maintenance and recurring fees paid
as well as in the non-infringing "under construction" web page associated
with the domain name owned by the Respondent".
Sixth, that it is only fair that the Complainant first make actual
use of its "www.trygbaltica.com" domain name - which it does not - "before
it tries to steal other domain name owners' domain names".
Seventh, that there has been abandonment by the Complainant of any
right to complain about the domain name in issue by reason of its inaction
for almost 4 years since registration of that domain name.
5.2.3 As to alleged registration of the domain name in issue in bad
faith, the Respondent replies as follows.
First, it had no knowledge of the Complainant at the time the domain
name was registered in October 1996.
Second, it knows nothing about business in Northern Europe, nor does
it employ any Scandinavians.
Third, as to the hyphen the Respondent states that if it
"had had the Complainant in mind, it would have been easier to register
the name "www.trygbaltica.com" without the hyphen. Since this is the way
most companies prefer to have their domain names, since the visitors often
forget any hyphen in a name.
The Respondent registered the domain name with the hyphen, since it
was two separate words that made up the domain name.
Also, the Complainant later on themselves registered the "www.trygbaltica.com"
domain name without the hyphen. But they have yet to even set up a website
for their name".
Fourth, the Respondent states that it "registered the domain name "www.tryg-baltica.com"
with a very specific projection in mind. This project is still being seriously
developed by the Respondent and its partners". No information as to the
nature of that project is, however, given.
5.2.4 As to the alleged use of the domain name in issue in bad faith,
the Respondent's reply is as follows.
First, it is the Complainant whom, through its Danish lawyers, offered
to purchase the domain name in issue in March 2000. That offer was rejected
by the Respondent.
Second, the Complainant routinely offers to buy domain names from the
registrants.
"In short, they act as a domain name buyer, seller, broker and reseller".
Third, the domain name in issue "
has never been used for commercial
or non-commercial matters. The disputed domain name has all along been
parked and reserved for later use by the Respondent".
Fourth, the domain name is not preventing the Complainant trademark
owner from reflecting that name in a corresponding domain name. The Respondent
points to the Complainant's existing domain names set out in paragraph
5.2.2. above.
Fifth, the domain name in issue is not being used for disrupting the
Complainant's business. In fact, as stated, it refers only to an under
construction web page.
Sixth, it follows that the Complainant is not using the domain name
in issue to attract Internet users for commercial gain by creating a likelihood
of confusion with the Complainant's mark.
6. The Disputed Facts
6.1 The Complainant seeks to link the Respondent to a Mr Dennis Willardt
Zewillis, who was found by the Danish Eastern High Court in a Judgment
delivered on November 26, 1999, to have registered more than 330 domain
names, the majority of which incorporated well known Danish company names
or trademarks. The Plaintiff in that action was Baan Nordic A/S [formerly,
Beologic A/s] and the Defendant was Mr Zewillis. It appears that, as Beologic
A/s, the Plaintiff had been a part of the Bang & Olufsen Group. The
Court held that Mr Zewillis [who was a Danish National in October 1996
when the domain name in issue in this administrative proceeding was registered]
and Domain ID, Inc had co-operated closely in connection with the registration
and sale of those domain names. As a Danish National at the relevant time,
the Complainant contends that Mr Zewillis and, hence, the Respondent would
certainly have been aware of the Complainant, which is a well known Danish
Company (see, paragraph 4.3 above). This pattern of conduct is relied upon
by the Complainant for the purpose of making out its case under paragraphs
4a(ii) and (iii) of the Policy.
6.2 This case involved an appeal by Mr Zewillis from judgement against
him by the Copenhagen City Court on December 2, 1997. From the English
translation of the Judgement of the Danish Eastern High Court on the Appeal,
it appears that Mr. Zewillis has a Master of Laws degree but was unemployed
at the time of the action., He claims that his brother was involved with
Domain ID, Inc and although Mr Zewillis used his company, Zewillis Legal
Services, to contact a number of Danish companies he maintained that registration
of domain names in his name was undertaken by Domain ID, Inc without his
authority or even his knowledge.
6.3 The Plaintiff pointed to Mr Zewillis' email address as being the
administrative contact for the domain name in issue, "beologica.com", of
which Domain ID, Inc was the registrant. As the Panel understands it, the
Danish Court took jurisdiction over Mr Zewillis on this basis, he being
the contact for domainID, Inc. The High Court affirmed the judgement of
the lower Court, finding that the registration of the domain name "beologic.com"
was made by Mr Zewillis for the purpose of offering it to the Plaintiff
"at an over price in contravention of fair trading practices under the
Danish Marketing Practices Act".
6.4 The Respondent responds to this as follows.
First, no legal action has ever been filed against domainID. com, Inc
in the United States or in any other country.
Second, the Respondent has not done business or had other relations
with Denmark.
Third, that the English translation of the judgement is "either false
or without the proper translations and notarisations to become valid documents
for the Panel to consider".
Fourth, that the Respondent is located in New York City only, it knows
nothing about business in Northern Europe and it employs no Scandinavians.
7. Discussion and Findings
7.1 Under paragraph 4a of the Policy, the Complainant must prove three
distinct elements in order to succeed with a claim for transfer of a domain
name, namely:
- that the domain name 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
- the domain name has been registered and is being used in bad faith.
7.2 Identical or Confusingly Similar
The Panel finds that the Respondent's challenge to the Complainant
having rights in the TRYG-BALTICA name and mark fail. The mark is a registered
service mark in Denmark and there is no challenge to the Complainant's
case that in Denmark the TRYG-BALTICA name and mark is synonymous with
the Complainant insurance company. This administrative proceeding is not
the forum for a challenge to the validity of that service mark.
7.3 The Respondent refers to the Decision in Bosco Products Inc .v.
Bosco E-Mail Service, The National Arbitration Forum [NAF], Case FA94828]
In that case, the Complainant owned the trademark BOSCO used since 1928
in connection with chocolate syrups and chocolate flavoured milk. The Respondents
were in the vanity e-mail business, which entails the leasing of individual
use in a shared email service, such that its customers include "[email protected]"
and "[email protected]". The Panel held that use made by the Respondents'
vanity email service was not a trademark use of the word BOSCO. The Respondent
here, presumably, compares its business involved in supplying e-commerce
and general IT solutions - albeit not under or by reference to the domain
name in issue (which is not used) - with the insurance business of the
Complainant.
7.4 With respect to the Panel in the BOSCO case, this Panel does not
consider that paragraph 2a (i) of the Policy requires a Complainant to
make out a case of trademark infringement. The Policy could quite easily
have stated that to be a requirement in plain and direct terms. It does
not. The Policy requires the Complainant to establish rights in the trademark
being asserted. If the domain name is identical to that trademark, then
the holder of the anterior trade mark has met the requirement of paragraph
4a(i) of the Policy. In this case the Respondent contends that the additions
of "www" and ".com" differentiate the domain name in issue from the Complainant's
trade mark. This Panel, in common with many other Panels rendering decisions
under the Policy, disregards those additions. In substance, the domain
name in issue and the Complainant's trademark are identical.
7.5 As to delay in bringing this Complaint, the UDRP has only been
in operation since the beginning of this year. In March 2000, the Complainant's
Danish Counsel, Hofman-Bang A/S, offered to buy the domain name in issue.
The Respondent replied that it was not interested in selling and in June
2000, this Complaint was brought. There has been no delay such as to preclude
the Complainant from succeeding in satisfying the requirements of paragraph
4a(i) of the Policy. The Decision in the BOSCO case was based on an entirely
different fact set to this administrative action. In that case, the Respondent
had been trading using the BOSCO name and mark for nearly 4 years and it
was held that the Respondent had rights and a legitimate interest in the
domain name by virtue of that trading. Here, there has been no use by the
Respondent of the domain name in issue and delay by the Complainant does
not arise for consideration. Further, it was not until November 1999 that
the Appeal Court in Denmark affirmed the finding that the Respondent was
involved in the registration and subsequent sale of domain names incorporating
the trademarks / names of a number of Danish companies and, hence, provided
the Complainant with evidence of a patent of conduct upon which to bring
this Complaint.
7.6 In the light of the foregoing, and of the fact that the Respondent
is not licensed or otherwise authorised to use the Complainant's mark(s)
the Panel finds that the Complainant succeeds in satisfying the requirements
of paragraph 4a(i) of the Policy.
7.7 Rights or Legitimate Interests
Paragraph 4c of the Policy sets out circumstances which, if found the
Panel to be proved based on its evaluation of all evidence presented, shall
demonstrate rights or legitimate interests to the domain name for the purposes
of paragraph 4a(ii). These are not exclusionary of other circumstances
which may show such rights or legitimate interests.
7.8 The Respondent's case under paragraph 4a(ii) of the Policy is summarised
in paragraph 5.2.2. above. First, the Respondent seeks to being itself
under paragraph 4c(i) of the Policy by asserting
"(i) before any notice to it of the dispute, its use of, or demonstrable
preparation to use, the domain name or a name corresponding to the domain
name in connection with a bona fide offering of goods or services".
The Respondent admits that no actual use of the domain name in issue
has been made. In fact, the Respondent states:
"The disputed domain name has all along been parked and reserved for
later use by the Respondent" (see, paragraph 5.2.4. above).
As to demonstrable preparation to use, the Respondent states that it
registered the domain name in issue in October 1996, "
with a very specific
project in mind. This project is still being seriously developed by the
Respondent and its partners" (see, paragraph 5.2.3. above). However, the
Respondent gives no indication of what that project is, save to say that
its "range of ideas and projects" are secret. By contrast, the Response
also asserts to the contrary that it is, in fact, using the domain name
in issue which "
we have used in a serious and positive manner for four
years and to no detriment to anybody else" (see, paragraph 5.2.2. above).
Such use would appear to be by reason of
"
the continued registration, maintenance and recurring fees paid
as well as in the non-infringing "under construction" web page associated
with the domain name owned by the Respondent". (See, paragraph 5.2.2. above).
The Rules provide that the Panel shall determine "the relevance, materiality
and weight of the evidence" [Rule 10(d)]. The Panel finds nothing in the
evidence which satisfies it that the Respondent has either used or made
demonstrable preparations to use the domain name in issue and, therefore,
fails to bring itself within the circumstances set out in paragraph 4c(i)
of the Policy.
7.9 The Panel rejects the Respondent's case that the Complainant is
adequately served by other domain names as not relevant to paragraph 4a(ii)
of the Policy.
7.10 The Respondent's assertion that continued maintenance etc of the
domain name (see, paragraphs 5.2.2. and 7.8 above) constitute legitimate
interests is also rejected by the Panel.
7.11 For the reasons already stated, the Panel further rejects the
Respondent's case of abandonment by the Complainant.
7.12 In summary, the Panel finds that the Respondent has advanced no
evidence to bring itself within the circumstances set out in paragraph
4c(ii) or (ii) of the Policy. Finally, the Respondent's theory that by
connecting to the domain name two or more servers that are in active use
and are connected to the Internet is without relevance to paragraph 4a(ii)
of the Policy. The Panel, therefore, finds that the Complainant succeeds
in meeting the requirements of paragraph 4a(ii) of the Policy.
7.13 The Respondent also relies on the Decision in Bridgestone Firestone
Inc & Others .v. Jack Myers [Case D2000-0190]. That case dealt with
paragraph 4c(iii) of the Policy - "making a legitimate non-commercial or
fair use of the domain name, without intent for commercial gain to misleadingly
divert consumers or to tarnish the trademark or service mark in issue"!.
On the facts, that decision cannot be applied in this case. In Firestone
Mr Myers was a former Firestone employee who created a website under the
"bridgestone-firestone.net" domain name in issue for the purpose of criticism
and commentary about the Complainants. The Panel applied a fair use doctrine
and the US right of free speech. By contrast, in this case these facts
do not arise: the domain name in issue here is not and has never been used.
Nor is there any suggestion that it is intended to be used for such purposes.
In any event, the Panel by way of comparison refers to its own decision
in Case D2000-0038 The Channel Tunnel Group Limited .v. John Powell.
7.14 Registered in Bad Faith
The Respondent's case is summarised in paragraph 5.2.3. above. Paragraph
4b of the Policy sets out circumstances which, 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.
7.15 The Complainant points to the Beologic decision of the Danish
Courts (see, paragraphs 6.1 to 6.4 above) as indicating a pattern of conduct
by the Respondent of registering over 300 domain names, the majority of
which incorporate well known Danish Company names and trademarks. The Danish
Court found on the facts a connection in that respect between a Mr Zewillis
and the respondent and held that the Domain in issue in that case had been
registered (in the name of the Respondent with Mr Zewillis as the Administrative
contact) for the purpose of offering it to the trademark owner at an overprice
in contravention of fair trading practices under Danish law.
7.16 The Respondent here makes a bare denial of any involvement in
that case, also suggesting that the English translation of the judgement
is false or improperly notarised. The Respondent's denials are not persuasive.
It is true that it was not a party to the Danish case against Mr Zewillis.
But, the Danish Court had jurisdiction since Mr Zewillis was the Administrative
Contact for the domain name in issue and a Danish national: the need to
join the Respondent did not, therefore, arise. Next, the fact, if it be
the case, that the Respondent has neither done business in Denmark nor
does it employ Scandinavians is not, in this Panel's opinion, persuasive
to rebut the pattern of conduct found by the Danish Court. Whether or not
Mr Zewillis had a brother who was employed by the Respondent was not material
to the decision of the Danish Court, nor is it of any evidential value
here.
The Respondent has failed to produce in the Response a convincing explanation
to rebut the finding of the Danish Court. The Panel concludes, on the balance
of the similar fact evidence presented by the Complaint and not convincingly
rebutted by the Respondent, that the domain name in issue was registered
in bad faith. Further, it is just not credible that the Respondent, who
professes ignorance of all things Danish, should register as a domain name
either the name of well known Danish Insurance Company or the Danish language
equivalent of "safe Baltic Area".
7.17 Used in Bad Faith
The domain name in issue has not been used, nor does it appear to have
been offered for sale to the Complainant, whether at an overprice or at
all. How then can there have been used in bad faith? In the Panel's view
such use is demonstrated by the Respondent's lack of rights or legitimate
interests in the domain name in issue, by the pattern of conduct established
by the judgement of the Danish Court and by the contradictory assertions
made in the Response (identified in this Decision). It has repeatedly been
held by WIPO Panels that inaction can constitute use in bad faith for the
purposes of paragraph 4a(iii) of the Policy, provided that there are convincing
indicia of bad faith by the Respondent.
7.18 The fact that the Complainant has other domain names incorporating
its name and/or trademark is irrelevant.
7.19 There is no evidence to support the suggestion that the Complainant
is "a domain name buyer, seller, broker or reseller". If this is intended
to suggest reverse domain name hijacking by the Complainant, the Panel
rejects such suggestion.
7.20 In the circumstances, the Panel is satisfied that on the evidence
the Complainant succeeds in establishing both registration and use in bad
faith.
8. Decision
For all the foregoing reasons, the Panel decides that the Complainant
has succeeded in satisfying the three requirements of paragraph 4a(i) to
(iii) of the Policy and directs that the domain name "tryg-baltica.com"
be transferred to the Complainant.