WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tchin-Tchin Holdings v. David Ausseil
Case No. D2000-0426
1. The Parties
Complainant is Tchin-Tchin Holdings, Hammond Suddards, 7 Devonshire Square, Cutlers Gardens, EC2M AYH London, Great Britain, represented by Stéphanie Judicq, Cabinet Breese Majerowicz, 3 avenue de l’Opéra, 75001 Paris, France, hereinafter the "Complainant".
Respondent is David Ausseil, 4 rue de Greffuhle, 75008 Paris, France, represented by Dominique de Leusse, 52 boulevard Malesherbes, 75008 Paris, France, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is "tchin-tchin.com", hereinafter referred to as the "Domain Name". The registrar is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complainant’s complaint on May 12, 2000. 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). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is May 31, 2000.
On May 17, 2000, the Center transmitted via email to Network Solutions Inc. a request for registrar verification in connection with this case. On May 19, 2000, Network Solutions Inc. transmitted via email to the Center, Network Solutions’ Verification Response, confirming that the Respondent is the registrant and that the administrative, technical and billing contact is Oznic.com.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on May 31, 2000, to the Respondent and to Oznic.com, Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier, facsimile and e-mail, according to the following contact details:
4 rue de Greffuhle
P.O. Box 761
Sunbury, VIC 3429
Tel : + 61 3 93482441
Fax : + 61 3 93481928
E-mail : email@example.com
The Center advised that the Response was due by June 19, 2000, and received the Response on June 20, 2000.
On June 30, 2000, in view of the Complainant’s designation of a single panelist, the Center invited Mr. Geert Glas to serve as a panelist.
Having received on June 30, 2000, Mr. Geert Glas's Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Geert Glas was formally appointed as the Sole Panelist. The Projected Decision Date was July 17, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the Complaint, the Response, the evidence presented, the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The complaint is based on a French trademark for the term "Tchin-Tchin", filed on October 14, 1998, and bearing the number 98 754 262, a copy of which was enclosed with the complaint. The trademark covers the products in classes 32, 33 and 35, namely:
"Beers; still and sparkling mineral waters and other alcoholic beverages; fruit drinks and fruit juices; cordials and other preparations for making drinks; non-alcoholic aperitifs; soda drinks.
Alcoholic drinks (excluding beers), alcohol essences, alcohol extracts, aperitifs, alcoholic drinks containing fruit, distilled drinks, liqueurs, eaux-de-vie, brandies, spirits, wines, vodka, whisky, rum.
Business management, business information, organization of exhibitions and trade shows for commercial and publicity purposes, distribution of samples, advertising".
According to Complainant, the trademark is regularly used by Complainant’s French subsidiary, which operates an alcohol and spirits retail outlet under the trade name "Tchin-Tchin". Beverages bearing the trademark "Tchin-Tchin" are produced at Complainant’s request and are marketed in its stores.
The Domain Name was registered by Respondent on May 18, 1999.
On March 24, 2000, Complainant, through its representative, sent a letter of formal notice to Respondent, requesting the transfer of the Domain Name. It appears however that Respondent did not reply to this request.
There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainant’s mark.
As of this date, the Domain Name is connected to an "under construction" page.
5. Parties’ Contentions
Complainant contends that Respondent has registered the Domain Name which is identical to Complainant's trademark, that Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name has been registered and is being used in bad faith.
Consequently, Complainant requires the transfer of the Domain Name registration.
Respondent invokes the principle of specialty and the principle of territoriality, as applied in trademark law, and therefore questions Complainant’s right to the Domain Name. Additionally, Respondent states that the Domain Name was not registered in bad faith.
Accordingly, Respondent requires that the remedy sought by Complainant be denied.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by the Respondent is identical to the trademark in which the Complainant has right; and,
(2) that the Respondent has no legitimate rights or interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered and used in bad faith.
The Domain Name is "tchin-tchin.com".
"Tchin-Tchin" is a registered trademark of the Complainant.
In view of the above, the Administrative Panel finds that the Domain Name is identical to the trademark "Tchin-Tchin" of the Complainant.
b. Registration and Use in Bad Faith
According to Complainant, "The holder of the domain name most certainly proceeded with its registration in bad faith." Furthermore, Complainant contends that "It is highly probable that the holder of the domain name proceeded with its registration for the purpose of negotiating this domain with the holder of a TCHIN-TCHIN trademark, the Complainant, or possibly with the holder of another TCHIN-TCHIN trademark of greater repute than that of the Complainant, such as that belonging to the company ALAIN AFFLELOU, filed after the Complainant’s trade mark and for other unrelated products."
The Panel finds that the arguments invoked by Complainant are merely speculative. Indeed, there is no evidence whatsoever that Respondent would have registered the Domain Name in order to sell it to Complainant or the owner of a different "Tchin-Tchin" trademark which would even be of a greater repute than that of Complainant.
To the contrary, the Panel finds that Respondent’s failure to answer the letter of formal notice sent to him and the request to transfer the Domain Name contained therein constitutes an indication that he was not interested in transferring the Domain Name.
The bad faith/good faith assessment cannot be made in abstracto, without taking into account the nature and possible meaning of the Domain Name.
It should in this respect be noted that the term "Tchin-Tchin" is well known in the French language where it is used as a drinking toast, much as the term "Prosit" in the German language or the term "cheers" in the English language. The 1984 edition of the "Petit Larousse Illustré", a well known and much relied upon French dictionary indeed contains the following entry for the word: "tchin-tchin" (translation):
"Tchin-tchin" or "Tchin" used when clinking glasses, to carry a toast. Tchin-tchin!
c. Rights or Legitimate Interests
In the absence of any evidence that the Domain Name was registered and is being used in bad faith, it is not necessary for the Panel to consider whether Respondent does have a right or legitimate interest in the Domain Name.
In light of the foregoing, the Administrative Panel decides that the Domain Name "tchin-tchin.com" registered by Respondent is identical to the trademark of Complainant, but that it is not established that Respondent registered and used the Domain Name in bad faith.
Accordingly, the Administrative Panel denies the Complaint. Respondent shall not be required to transfer the registration of the Domain Name "tchin-tchin.com" to Complainant.
Dated: July 17, 2000