MONDAY, 31 AUGUST 2009
Swiss DRP: some notable cases
In this last post in the series on the Swiss Dispute Resolution Policy (DRP) for domain names in the TLDs .ch and .li, I will look at some of the more interesting cases decided under the Swiss DRP so far.
On the other hand, geographical indications, unless they have acquired secondary meaning as an indication of source (e.g. "Rhäzünser" for mineral water), are free to be used by anyone (not misleadingly, of course). The domain names lenzerheide-valbella.ch and evolene-vacances.ch, both geopgraphic place names for tourist destinations, were therefore not transferred to the complainant (note that the domain name corresponding exactly to the name of a municipality is reserved for that municipality under public law since 2007, but the law does not apply retroactively).
Somebody else's trade marks may also be used do describe one's products, as long as the relevant consumers are not misled. These cases are tricky, because the line between legitimate use of someone else's trade mark and misleading use is a fine one. Fiat was unsuccessful in its attempt to have the domain name http://www.fiat500.ch/ transferred to it. The domain name was (and still is) used for a fansite on the "Fiat 500", and the expert held such "informative" use of the trade mark not to be infringing. In a similar vein, the transfer of volvo-import.ch to Volvo was refused because the respondent did in fact import Volvos and could use Volvo's trade mark to describe his services.
On the other hand, Ariel Hauser had the misfortune that her first name is identical to the very well-known detergent ARIEL. She lost the domain name ariel.ch to Procter & Gamble. But the owners of the brand MERCURE for hotel services failed to convince the expert that the domain name mercure.ch should be transferred to it. The expert held that "mercure" had many meanings (in French: Greek god, planet, and mercury), and it was by no means clear that consumers expected to find the website of the respondent under the domain name mercure.ch. In fact, http://www.mercure.ch/ is currently used for watches, and given that trade marks are only protected for the products they claim (unless it's a famous mark), the decision seems correct.
Overall, the practice under the Swiss DRP seems fair, the experts have resisted to transfer domain names unless there is a clear violation of the law on distinctive signs, as the policy demands.
Image credit: from the Flickr page of tonylanciabeta
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