[Random-bits] UDRP: =?iso-8859-1?Q?S=FCd=2DChemie?= AG v. tonsil.com

[James Love]

http://arbiter.wipo.int/domains/decisions/html/d2000-0376.html
Süd-Chemie AG v. tonsil.com
Case No. D2000-0376

In this case, a WIPO panel took way the domain tonsil.com from Virginia
Comito, and gave it to a german chemical products firm, that claimed
that tonsil was "an invented word that has no meaning or significance
other than to identify and distinguish its products from those of its
competitors."   The one person WIPO panel made much of the fact that
Virginia Comito was alledgedly involved with the registration of a
different domain for use by a pornographic sites, and that it wasn't
clear who the "owner" of the domain was (even though she had responded
to the proceeding to defend the domain from the transfer.  

This is one of several cases where a generic name has been taken away
from a domain holder.  My MIT online dictionary defines tonsil as
follows:

	Tonsil Ton"sil, n. L. tonsill?, pl.: cf. F. tonsille. 
	(Anat.)
	One of the two glandular organs situated in 
	the throat at the sides of the fauces. The 
	tonsils are sometimes called the almonds, 
	from their shape.

>From the decision:

4. Factual Background

The Complainant is a large chemical products manufacturer organized
under the laws of Germany. Since 1952 the Complainant has been
producing, selling and marketing bleaching earths and clays under the
trademark "Tonsil". 1999 sales of "Tonsil" exceeded DM 50 million.

  [snip]

5. Parties? Contentions

The Complainant asserts that: (1) The domain name tonsil.com is
identical or confusingly similar to the trademark "Tonsil" in which the
Complainant has world-wide exclusive rights; (2) the Respondent has no
rights or legitimate interests in respect of the domain name; and that
(3) the domain name was registered and is being used in bad faith. 

The Complainant further asserts that the term "Tonsil" is an invented
word that has no meaning or significance other than to identify and
distinguish its products from those of competitors; and that as an
invented word "Tonsil" is not a word traders would legitimately use
except to create an association with the Complainant. 

   [snip]

Virginia Comito asserts that: (1) Tonsil and tonsil.com are not
identical or confusingly similar; (2) the Respondent has rights and a
legitimate interest in the domain name; and that (3) the domain was not
registered and used in bad faith.

Virginia Comito further alleges that the Complainant has submitted false
and misleading evidence, acted in bad faith by raising arguments it knew
were untrue, harassed herself, interfered with her business
relationships, succeeded in shutting down her website by its actions
thereby damaging her personal and business interests, and deprived her
of the use of tonsil.com. 



8. Decision

The Panel decides that:

1) the domain name tonsil.com is confusingly similar to the trademark
"Tonsil";

2) Ms. Comito has no rights or legitimate interest in respect of the
domain name tonsil.com;

3) the domain name tonsil.com has been used in bad faith by Ms. Comito. 

Pursuant to paragraph 4(i) of the Policy and pursuant to paragraph 15 of
the Rules, the Panel requires that the Registrar, Network Solutions,
Inc., transfer the name tonsil.com to the Complainant. 

 


-- 
James Love  mailto:love@cptech.org http://www.cptech.org
Consumer Project on Technology, P.O. Box 19367, Washington, DC 20036
voice 1.202.387.8030  fax  1.202.234.5176