FREIXENET mark owner celebrates transfer of 'freixe.net'
Bernward Averwald, a German national, registered 'freixe.net' in 1996. He originally registered the domain name under the designation Free Unix Internet Service. Freixenet SA, a Spanish company that sells sparkling wine under the FREIXENET and FREIXE marks, filed a complaint with WIPO under the Uniform Domain Name Dispute Resolution Policy (UDRP). It argued that Averwald's registration infringed its rights in its marks and pointed out that the domain name had not been used since its registration.
Averwald replied that 'freixe.net' consisted of the descriptive terms '.net' and 'freixe'. He contended that the term 'freixe' was made up of the German word 'frei' meaning 'free' and 'Xe' - an abbreviation for the Unix computer operating system.
Meyer-Hauser rejected Averwald's arguments and ordered the transfer of the disputed domain name. He reasoned that Freixenet had met the requirements for transfer set out in Paragraph 4 of the UDRP. Meyer-Hauser stated that there was a likelihood of confusion because internet users would view the domain name, including the '.net' suffix, as a whole. Thus, 'freixe.net' was confusingly similar to the FREIXENET mark. Meyer-Hauser also held that Averwald had failed to prove that even a computer specialist would understand the term 'freixe' as consisting of the German word for free and an abbreviation for Unix.
According to Meyer-Hauser, there was evidence that Averwald had registered the domain name in bad faith because he had (i) failed to use it, and (ii) blocked the owner of a well-known and valuable mark from accessing the domain name for a considerable period of time (seven years).
Stephan N Schneller and Henry Lauf, Maiwald Patentanwalts GmbH, Munich
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