It is not enough to make assertions. Nor should parties or their advisers assume that panelists will in every case simply allow the case to pass through without insisting on proper proof. A recent case that illustrates these points again was Germanwings GmbH v. Hin und Weg Flugreisenzentrale GmbH (WIPO Case No. D2011-1218).
The disputed domain name <german-wings.com>.
German Wings is the well known budget airline in Europe. It claimed the domain name <german-wings.com> from the respondent which put up a spirited defence to the effect that:
The Respondent denied that the Complainant owned rights in the GERMAN WINGS Marks as such marks were registered in the name of Deutsche Lufthansa AG and as the Complainant did not provided any evidence that it is the licensee of such trademarks.
The Respondent contended that it registered the disputed domain name because of its generic meaning in order to use it for its own business, no third party rights in “German Wings” existed when the Respondent registered the disputed domain name, as the trademarks at issue predating such registration were either invalid or unenforceable due to lack of use and the Complainant had no trade name rights in German Wings at the time of the registration of the disputed domain name.
The Respondent also claimed that there were no enforceable trademark rights in German Wings at the time of the registration of the disputed domain name and the registration of the disputed domain name therefore did not occur in bad faith.
Without going into the complexities of German trademark law, it is enough to say, first, that the panel made a procedural order requiring the Complainant to prove its trademark rights and its chain of title and , secondly, that the panelist was not satisfied with the material that was forthcoming. There was no conclusive evidence of the trademark rights or of the chain of title showing that the Complainant could bring the claim. The panelist went on to say that the case was not appropriate for the UDRP in any event and could not have been disposed of by that means, as it involved questions of German trademark law. The claim was therefore denied.
The case is noteworthy because the panelist took the initiative and issued the procedural order requiring more evidence of the trademark. The case failed for lack of evidence and its connection with disputed trademark law made it inappropriate for it to be dealt with under the UDRP. The decision should therefore be a timely reminder that panelists will ask questions, look for and analyse the evidence and sometimes decide that a claim is outside the generally understood ambit of the UDRP.