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March 4, 2011 / Nate Harris

Ironmonger Hazet-Werk denied hz-kraft.com

Summary of Hazet-Werk Hermann Zerver GmbH & Co. KG v. wilhelm jacobus izak
(WIPO Case No. D2011-0040)

Filed: January 7, 2011; Decided: February 17, 2011 (Panelist: Sebastian M.W. Hughes)

Disputed domain name: <hzkraft.com>

hzkraft.com

The Parties

Complainant Hazet-Werk Hermann Zerver GmbH & Co. KG (“Hazet-Werk”) is a German company and the owner of a number of registrations for the mark HAZET for goods including tools, common metals, “ironmongery”[!], locks, and fittings. It sells tools and other products all having a distinctive turquoise color, which it claims to have used since 1868. [When was the color turquoise invented?]

Though Respondent Wilhelm Jacobus Izak did not respond to the Complaint, he is “an individual apparently with an address in China.” He registered the disputed domain on October 20, 2010. He uses the disputed domain to sell (turquoise) tools that are identical to Hazet-Werk’s tools; in fact, some of the pictures on the Mr. Izak’s site were apparently lifted directly from Hazet-Werk’s site.

Language of the Proceeding

The language of the Registration Agreement for the disputed domain is Chinese. Ordinarily, that would mean that the proceeding should also be in Chinese. However, Hazet-Werk requested that the proceeding be conduced in English. The Panel notes that paragraphs 10(b) and (c) of the Rules require it to ensure fairness to the parties and maintain an inexpensive and expeditious avenue for resolving the dispute. “Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.”

Hazet-Werk is a German company. Mr. Izak’s website is in English, German, Dutch, and French, and the dispute domain name is spelled in English. Furthermore, he lists an address in Switzerland on the website. From this, the Panel arrives at the “likely possibility that the Respondent is conversant in the English language,” and thus would not be prejudiced by the Panel’s decision to conduct the proceedings in English.

Identical or Confusingly Similar

The Panel notes that the disputed domain does not include the HAZET mark, but rather contains the letters “hz”, “which could perhaps be considered as an abbreviation of the trademark.” Nonetheless, the disputed domain is not confusingly similar to the mark. Though Hazet-Werk claims the disputed domain is phonetically identical to the “Hazet Kraft” products that Hazet-Werk sells, Hazet-Werk has not asserted trademark rights in the term “Hazet Kraft,” nor does that term appear anywhere on its website. Therefore, the disputed domain name does not contain any mark owned by Hazet-Werk or a confusingly similar variation thereof.

Rights or Legitimate Interests

Though the Panel need not go further to consider rights or legitimate interests nor bad faith, it notes that the website does not appear to use the color turquoise. [Yeah, but some of the products on it do.] Furthermore, Hazet-Werk has not substantiated its claims to own intellectual property rights in its toolcart products or the pictures of them appearing on its website.

Decision

The complaint is denied.

Commentary

I don’t know how Hazet-Werk thought it was going to prove that “hz-kraft” is confusingly similar to Hazet-Werk. It’s easy to appreciate their frustration at the expropriation of their pictures and color scheme, but the similarities pretty much end at the domain name.

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