Geography Reference
In-Depth Information
6.234
The Complainant submitted that the contested domain name was identical or
confusingly similar to a trade mark or service mark in which the Complainant
had rights, namely the trade mark 'BRABANT WALLON' and that the
Respondent had no rights or legitimate interests in respect of the domain name
and could not prove any link with the Province of Brabant Wallon that would
justify the use of the trade mark as a domain name. These facts were also
asserted in support of the Complainant's argument that the domain name was
registered and used in bad faith. The Respondent did not reply to the Com-
plainant's contentions.
ii.
The Complainant's rights in a geographical trade mark
Although it was acknowledged, by the Panellist that geographical terms are not
protected as such under the UNDP, it was generally accepted amongst panel-
lists that geographical terms can be so protected if shown by evidence of their
use or by registration to have become or to be distinctive of the goods or services
of a particular trader. It was a matter of evidence in each case as to whether a
complainant had proved that the geographical name functioned as a trade
mark.
230
In this case the Complainant had established that it has rights in a
registered trade mark.
6.235
iii. Identical or confusingly similar
The Panel observed that the dominant and immediately striking feature of the
registered trade mark on which the Complainant relied was its figurative
element comprising a combination of triangles, squares and other shapes
forming a design somewhat reminiscent, for example, of a silhouette of sails.
This overshadowed the words 'Brabant wallon - la jeune Province'. As the
figurative element was an essential element of the Complainant's mark in
comparing the disputed domain name with the Complainant's mark, it was
apparent that the two were neither identical nor virtually identical, so the Panel
ruled that the Complainant had failed to establish this element of its case and
that it was therefore unnecessary to consider the issues of legitimacy and bad
faith.
6.236
(g)
Warendorfer Küchen GmbH v MDNH Inc
231
The Complainant, Warendorfer Küchen GmbH of Warendorf, Nordrhein-
Westfalen, Germany, is a German corporation in the business of the develop-
ment, production and distribution of kitchen furniture. The Respondent,
6.237
230
Applying
Consejo de Promoción Turística de México, SA de CV v Latin America Telecom Inc
, WIPO Case No
D2004-0242.
231
Case No D2009-1067.
