Silit-Werke GmbH & Co KG v. Frans Noordermeer et al.
Claim Number: FA1611001701189
Complainant: Silit-Werke GmbH & Co KG of Riedlingen, Germany.
Complainant Representative: Boehmert & Boehmert Lawfirm of Berlin, Germany.
Respondent: Francois Noordermeer of Arnhem, Netherlands.
Frans Noordermeer of Arnhem, International, NL.
Network Operations / Hostnet bv of Amsterdam, NL.
REGISTRIES and REGISTRARS
Registries: GMO Registry, Inc.
Registrars: Tucows Domains Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Bart Van Besien, as Examiner.
Complainant submitted: November 3, 2016
Commencement: November 3, 2016
Response Date: November 7, 2016
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of fact: Complainant claims to be the owner of several “Silit” trademarks, including a figurative EU trademark “Silit”. Complainant has provided evidence of the figurative EU trademark “Silit” (Filing No. 000100198; valid for classes 8, 9, 11, 20 and 21), registered on 5 October 1998 (this trademark was registered before the registration of the disputed domain name, i.e. 3 October 2016). Complainant did not provide evidence of any word trademark. Respondent filed a Response on 7 November 2016.
Discussion: URS Procedure 1.2.6.1 requires Complainant to prove that “the registered domain name is identical or confusingly similar to a word mark: (i) for which the Complainant holds a valid national or regional registration and that is in current use; or (ii) that has been validated through court proceedings; or (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed (…)”.
URS Procedure 1.2.6.2 requires Complainant to prove that “the Registrant has no legitimate right or interest to the domain name”.
URS Procedure 1.2.6.3 requires Complainant to prove that “the domain was registered and is being used in bad faith”.
URS Procedure 8.2 stipulates: “The burden of proof shall be clear and convincing evidence.”
URS Procedure 9.1 stipulates: “There will be no discovery or hearing; the evidence will be the materials submitted with the Complaint and the Response, and those materials will serve as the entire record used by the Examiner to make a Determination”.
URS Procedure 9.3 stipulates: “If the Complainant does not satisfy the burden of proof, the URS proceeding is terminated and full control of the domain name registration shall be returned to the Registrant.”
The Examiner notes that URS Procedure 1.2.6.1 requires Complainant to prove, by clear and convincing evidence, that the registered domain name is identical or confusingly similar to a word mark. The Examiner did find evidence of a figurative EU mark in the Complaint, but did not find any evidence of a word mark in the Complaint. The Complaint mentions that the Complainant owns a global portfolio of registered trademarks for its Silit brand. However, the Complaint did not contain any evidence of a word mark “Silit”. URS Procedure 1.2.6.1 is very clear in the sense that the Complaint should be based on a word mark. URS Procedure 9.1 is very clear in the sense that the evidence is limited to the materials submitted with the Complaint and the Response, and that those materials are the entire record that can be used by the Examiner to make a Determination.
The Examiner finds that the Complaint did not satisfy the standards of URS Procedure 1.2.6.1 in the sense that the Complaint did not provide any evidence of a word trademark to which the disputed domain name would be identical or confusingly similar.
After reviewing the parties’ submissions, the Examiner determines that the Complainant has NOT demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be RETURNED to the control of Respondent.
<silit.shop>
Bart Van Besien, Examiner
Dated: November 07, 2016
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