FRIDAY, 1 AUGUST 2008 returns to its legitimate owner

CAMERIMAGE LOGOThe WIPO arbitration panel has ruled that the domain name had been used and registered in bad faith and ordered that the domain be transferred to its legitimate owner, Fundacja Tumult from Torun.

Fundacja Tumult (the Foundation) is a legal entity from Poland which organizes the International Film Festival of the Art of Cinematography, "Camerimage". The name of the festival was independently invented by Mr Marek Zydowicz, the president of the Foundation, and has no specific meaning in any language.

Roland Szymanski, the respondent, registered the domain name with OnlineNic.Inc. The agreement was signed in the English language. The Complaint against Mr Szymanski was filed with the WIPO Arbitration and Mediation Center on April 29, 2008. The Respondent claimed some difficulties in finding a lawyer competent enough in legal English to deal with the present case. Marcin Krajewski was appointed as the sole panelist. According Mr Krajewski:

In accordance with paragraph 11 of the Rules, the language of the procedure is that of the registration agreement. Such a rule bases on a presumption that if a party is fluent enough in a specific language to enter into a registration agreement, it should be equally fluent to deal with an administrative procedure. Moreover, the claim that it is difficult in Poland to find a lawyer understanding legal English is highly unconvincing to the Panel.
The Panelist decided to disregard arguments as regards difficulties in finding a competent English speaking lawyer.

The Foundation was the owner of the Polish trade mark R-104365, consisting of the word Camerimage, registered on 4 August 1998, in class 41. The protection right had not been renewed and expired on 1 August 2005 but the trade mark CAMERIMAGE was used all the time, regardless of the lapse of protection rights. The Complainant also operated a website, the official website of the Festival. It also held domain names such as :,, and

Mr Szymanski offered to set an establishment of a joint-venture with the Foundation. His proposal was rejected. After registering the disputed domain name Mr Szymanski offered it for a sale for a considerable amount of money, which was also turned down by the Complainant.

The Foundation contended in its complaint against Mr Szymanski that each of the three elements specified in paragraph 4(a) of the Policy were present in its case. However, the Foundation admitted it was not not aware of the fact that the protection right as to the registered trade mark had already expired.

The Panelist found that the contested domain name was identical to a trade mark in which the Foundation has rights:
This is not quite the end of the matter, as it the Complainant can show rights in an unregistered trademark consisting of the word "Camerimage". In view of this Panel there is no worldwide recognized concept of an unregistered or common law trademark and consequently it must be related to suitable territorial jurisdictions. As both the Complainant and the Respondent are Polish and the Festival is organized in Poland it seems that Polish law is relevant to this matter.

The Polish Law of Industrial Property grants protection to so-called "commonly-known" trademarks, even if they are not registered within the Patent Office. However, this Panel finds it hard to derive from the contentions and evidence offered by the Complainant that his trademark can be regarded as "commonly-known".

Moreover, article 10 of the Polish Act on Combating Unfair Competition prevents such branding of goods and services that can mislead as to its origin and in particular can mislead as to the identity of the person who places the goods or services onto the market. This article can be understood as granting a limited protection to the trademarks even if they are not formally registered and therefore the Complainant can derive from this article his right to the unregistered trademark CAMERIMAGE.

In coming to the conclusion that the Complainant actually holds rights in an unregistered trademark consisting of the word "Camerimage", this Panel considers the fact that this word has become a distinctive identifier associated with the Complainant’s services. This was not only due to the length of its use (15 years) but also due to the fact that “Camerimage” is an invented word having no specific meaning in any language and there is no evidence of it being used otherwise as to name the Festival.
The Panel was satisfied with the Complainant’s statements that Mr Szymanski had not any rights or legitimate interests to the word "camerimage" and he has registered and used domain name it in bad faith.

Class 46:
- WIPO Arbitration Rules can be found here,
- ICANN Rules for Uniform Domain Name Dispute Resolution Policy can be found here,
- ICANN Uniform Domain Name Dispute Resolution Policy can be found here.

Fundacja Tumult v. Roland Szymanski, Case No. D2008-0669, 29 July 2008.

Posted by: Tomasz Rychlicki @ 10.00
Tags: cybersquatting, Domain name disputes, WIPO Arbitration and Mediation Center,
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