Westmore · UDRP DecisionLidl-austria.com
The Panel ordered transfer of <lidl-austria.com> solely on the basis of the Respondent’s unequivocal consent to transfer. Although settlement was not finalized during the suspension period, the Panel found that the signed transfer document and email correspondence established consent and therefore did not decide the three UDRP elements on their merits.
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This decision illustrates a consent-to-transfer disposition after an attempted settlement was not completed. The decisive question was not whether the Complainant proved the three UDRP elements, but whether the Respondent’s correspondence and signed document amounted to unequivocal consent that remained effective despite the failed settlement process.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION LIDL Stiftung & Co. KG v. WhoisGuard Protected, WhoisGuard, Inc. / Web Server Kft., Web Server Kft. Case No. D2020-3181 1. The Parties The Complainant is LIDL Stiftung & Co. KG, Germany, represented by HK2 Rechtsanwälte, Germany. The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Web Server Kft., Web Server Kft., Hungary. 2. The Domain Name and Registrar The disputed domain name <lidl-austria.com> (the “Domain Name”) is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2020. On November 26, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 8, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 10, 2020. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 31, 2020. On December 14, 2020, the Respondent expressed its willingness to settle the dispute with the Complainant. On December 15, 2020, the Center informed the Parties that if they wished to explore settlement options, the Complainant should submit a request for suspension. Upon receipt of the Complainant’s suspension request of December 22, 2020, the proceeding was suspended on December 24, 2020, until January 23, 2021. The Center received communications from the Parties between January 5 and January 12, 2021. Upon receipt of the Complainant’s reinstitution request of January 14, 2021, the proceeding was reinstituted on January 15, 2021, and the new Response due date was January 22, 2021. On January 25, 2021, the Center informed the Parties that it would proceed with panel appointment. The Center received another email communication from the Respondent on February 1, 2021. The Center appointed Ellen B Shankman as the sole panelist in this matter on February 16, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The date of the Domain Name registration was confirmed by the Registrar to be September 23, 2020. The Complainant is part of the LIDL-Group, a global discount supermarket chain, based in Germany. The trademark LIDL serves as a trademark of the Complainant and is protected as a registered trademark in numerous jurisdictions world-wide. The Complainant owns, inter alia , International Trademark Registration No. 585719 for LIDL (word mark), registered on December 4, 1991. The Complainant has provided evidence that the LIDL trademark has also had extensive coverage and use. The trademark predates the registration date of the Domain Name registration. The Panel also conducted an independent search to determine that the Domain Name resolves to an inactive website. 5. Parties’ Contentions A. Complainant The Complainant is part of the LIDL-Group. The LIDL-Group operates more than 10,000 stores with over 285,000 employees. Currently its stores can be found in 29 countries, inter alia , 3,300 of those in Germany and around 250 in Austria. All rights of companies of the LIDL-Group to act under the name “Lidl” and to use the LIDL-trademarks derive from the Complainant. The Domain Name is confusingly similar to the LIDL trademarks of the Complainant, and consists of the Complainant’s trademark LIDL suffixed with the geographical identifier “Austria”. To summarize the Complaint, the Complainant is the owner of multiple registrations for the trademark LIDL. The Domain Name is confusingly similar to the trademark owned by the Complainant. The addition of the geographical term “Austria” to the trademark LIDL does not prevent a finding of confusing similarity. Therefore, the Domain Name could be considered virtually identical and/or confusingly similar to the Complainant’s trademark. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Domain Name was registered and is being used in bad faith. Moreover, the Respondent engaged in a pattern of bad faith registrations targeting well-known trademarks. Thus, the Respondent’s registration and use of the Domain Name constitutes bad faith registration and use under the Policy, and the Complainant requests transfer of the Domain Name. B. Respondent The Respondent did not formally reply to the Complainant’s contentions, but has offered and agreed to transfer the Domain Name to the Complainant in email communications filed with the Center and on January 7, 2021, the Respondent provided a signed document to that effect. 6. Discussion and Findings The burden for the Complainant under paragraph 4(a) of the Policy is to prove: (i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and used in bad faith. The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present in order to obtain the transfer of the Domain Name. However, the Panel notes that consent to transfer by the Respondent can provide a basis for an order for transfer without a need for consideration of the UDRP grounds. Taking into account the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.10 and The Cartoon Network LP, LLLP v. Mike Morgan , WIPO Case No. D2005-1132 , the Panel finds that when the Complainant seeks transfer of the Domain Name, and the Respondent agrees to transfer, the Panel may proceed immediately to make an order for transfer. Under section 4.10 , “Where parties to a UDRP proceeding have not been able to settle their dispute prior to the issuance of a panel decision using the ‘standard settlement process’ described above, but where the respondent has nevertheless given its consent on the record to the transfer (or cancellation) remedy sought by the complainant, many panels will order the requested remedy solely on the basis of such consent. In such cases, the panel gives effect to an understood party agreement as to the disposition of their case (whether by virtue of deemed admission, or on a no-fault basis).” The Panel agrees with this approach. In this case, the Center received several communications from the Respondent expressing its willingness to settle the dispute, inter alia , to transfer of the Domain Name to the Complainant. On December 22, 2020, the Complainant sent an email to the Respondent outlining the settlement conditions and indicating it would be willing to settle the dispute if the Respondent agreed to its settlement conditions. The Respondent did not reply to the Complainant’s aforementioned email. However, on January 7, 2021, the Respondent agreed to transfer of the Domain Name to the Complainant and provided a signed document to that effect. For reasons that are unclear, this settlement was not finalized. Notwithstanding, the Panel finds the expression of the consent to the transfer by the Respondent based on the correspondence chain of the emails to be unequivocal. In the Panel’s view that although the settlement agreement was not executed within the designated suspension period, does not affect the Respondent’s unequivocal consent to the transfer. Accordingly, the Panel does not consider it necessary to issue a decision on the merits, and orders the immediate transfer of the Domain Name. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <lidl-austria.com> be transferred to the Complainant. Ellen B Shankman Sole Panelist Date: March 2, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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