FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:<\/p>\n
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The Complainant is the Belgian company Brouwerij L. Huyghe, naamloze vennootschap, a well-known brewery based in Melle (Belgium) but with a very strong international presence and reputation. In particular, the Complainant’s beer DELIRIUM TREMENS with its famous pink elephant logo, which was first launched in 1988, has been a staple of the “special” beer world for almost 40 years, even winning the title “best beer in the world” at the 1998 world beer championships in Chicago.<\/p>\n
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Since then, the DELIRIUM range has been broadened, with the addition of multiple declinations of the beer, such as DELIRIUM RED, DELIRIUM ARGENTUM, DELIRIUM NOCTURNUM, DELIRIUM CHRISTMAS, DELIRIUM BLOND, DELIRIUM DELIRIA and DELIRIUM BLACK.<\/p>\n
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As far as necessary, DELIRIUM is a well know brand. The complainant’s DELIRIUM beers are successfully being sold in many countries around the world for many decades. Of particular interest for this matter, we refer to the established presence of the Complainant in Brazil.<\/p>\n
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Moreover, the Complainant can rely on the following protected rights for the mark DELIRIUM:<\/p>\n
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DELIRIUM is a worldwide registered trademark. There are worldwide around 83 valid trademark registrations in the name of Brouwerij L. Huyghe for or containing ‘DELIRIUM’ in class 32. The whole EU is protected with several trademark registrations, and further covered countries include Brazil, Argentina, Colombia, Chile the US, Canada, China, Taiwan, Turkey, Korea, Japan, India, Singapore, Australia, New Zealand, Vietnam, Switzerland, Norway and Russia.<\/p>\n
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As a few showing examples we can mention that are of specific interest in this matter:<\/p>\n
Brazilian trademark registration no. 830822100 for the device mark in class 32, registered on 25 March 2014;<\/p>\n<\/li>\n
Brazilian trademark registration no. 911180850 for the word mark DELIRIUM in class 32, registered on 26 November 2019.
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Due to its long lasting and intensive use since 1988 the mark DELIRIUM is further to be considered a worldwide reputed brand.<\/p>\n
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Over the past years, the Complainant was made aware of fraudulent practices in Brazil, where parties such as the Respondent register domain names that suggest a connection with the Complainant or its trademarks, such as the domains in question, create an fake imitation of the Complainant’s real website (featuring pictures and fonts copied from the official delirium.be website) sell goods to unsuspecting Brazilian customers and never send the goods in question (as they never were in possession of the goods in the first place).<\/p>\n
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Along with defrauding unsuspecting customers and the crime that can be derived from these actions, the consequences for the Complainant’s reputation are obviously enormous and the negative experience of the duped customers in relation to DELIRIUM has a clear and direct detrimental effect on the Complainant.<\/p>\n
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As far as the domain name ownership is concerned, Complainant now has decided to submit the matter to arbitration and hereby requests that the complaint be submitted for decision in accordance with the Uniform Domain Name Dispute Resolution Policy.<\/p>\n
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First UDRP Element - The Domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;<\/p>\n
The disputed domain names are confusingly to the Complainants’ registered trademark rights for DELIRIUM.<\/p>\n
The disputed domain names incorporate the Complainants' DELRIUM trade mark in its entirety under the “.com” generic Top-Level Domain. The added elements “BRAZIL” and “SHOP” are generic, will not be perceived as distinctive elements by the relevant consumer next to the first and dominant “DELIRIUM” element. In the disputed domain names the DELIRIUM trademark stands out and leads the public to think that the disputed domain names are somehow connected to the owner of the registered trademark; most likely being an official Brazilian webshop for the DELIRIUM products.<\/p>\n
In similar situations, prior panels deciding under the Policy have held that “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements.”. See, for example, Playboy Enterprises International, Inc. v. Zeynel Demirtas, WIPO Case No. <\/em>D2007-0768<\/em><\/a>, <playboyturkey.com>,<\/em><\/p>\n <\/p>\n Second UDRP Element - the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name that is the subject of the Complaint:<\/p>\n <\/p>\n The Respondent defences under UDRP paragraph 4(c) are applicable in this case:<\/p>\n <\/strong><\/p>\n Before any notice of the dispute, the Respondent did not use the disputed domain names or a name corresponding to the disputed domain names in connection to bona fide offering of goods or services, nor are there any indications that the Respondent was preparing to use the domain name in such a way. For the recorded past, the domain name was only used as a fraudulent imitation of the Complainant’s website.<\/p>\n<\/li>\n<\/ul>\n <\/p>\n The Respondent (as an individual, business, or other organization) has not been commonly known by the disputed domain names, even if the Respondent has acquired no trademark or service mark rights. While there may exist people with rights on the name DELIRIUM, it is highly implausible that the Respondent would be known by this name. This is supported by the fact that the domain names are actually used and feature imitations of the Complainant’s website. In any case, if there was any party with a lawful claim to the domain name, the Complainant would necessarily know it.<\/p>\n<\/li>\n<\/ul>\n <\/p>\n Moreover, the Complainant has not licensed or otherwise permitted the Respondent – or any other party for that matter - to use any of its trademarks or to apply for or use any domain name incorporating its marks. In the course of business DELIRIUM can be considered to be an invented word, and as such it is not a name traders would legitimately choose unless seeking to create an impression of an association with the Complainant.<\/p>\n <\/p>\n The Respondent is not making a legitimate noncommercial or fair use of the disputed domain names. His intention is for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. In our view, there is not much discussion to be had on the fact that the use in question is obviously misleading and could – as it has happened already – lead to consumer confusion and diversion.<\/p>\n<\/li>\n<\/ul>\n <\/p>\n\n
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