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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

CHICAGO MERCANTILE EXCHANGE v. ALLIED PACIFIC ENTERPRISES(S) PTE LTD. a/k/a ALLIED PACIFIC SINGAPORE TECHNOLOGIES PT

Case No. D2000-0968

 

1. The Parties

Complainant is Chicago Mercantile Exchange, a corporation incorporated under the laws of Illinois, with a principal place of business at 30 South Wacker Drive, Chicago, Illinois 60606, United States of America.

The Respondent is "Allied Pacific Enterprises (S) Pte Ltd. also known as Allied Pacific Singapore Technologies Pt whose address is 541 Orchard Road, Suite 10-01, Liat Towers, Singapore.

According to Network Solutions, Inc. WHOIS database, Allied Pacific Enterprises (S) Pte Ltd. is the registrant of the domain name "chicagomercantileexchange.com" and Allied Pacific Singapore Technologies Pt is the registrant of "chicagomercantileexchange.net" and "chicagomercantileexchange.org". Both companies have the same address, e-mail and contact information. No corporate record in Singapore has been identified concerning either entity. Upon information and belief it is understood that Allied Pacific Enterprises (S) Pte Ltd and Allied Pacific Singapore Technologies Pt are one and the same. (Paragraph 6 of the Complaint).

 

2. The Domain Names and Registrars

The domain names in issue are:

"chicagomercantileexchange.com"

"chicagomercantileexchange.net"

"chicagomercantileexchange.org"

The Registrar with whom the disputed domain name "chicagomercantileexchange.com" is registered is Internet Domain Registrars, Registrars.com, 475 Sansome St. #570, San Francisco, California 94111, USA.

The Registrar with whom the disputed domain names "chicagomercantileexchange.net"

and "chicagomercantileexchange.org" are registered is Alabanza, Inc. d/b/a BulkRegister.com whose mailing address is BulkRegister.com, 10 East Baltimore Street, Suite 1601, Baltimore, Maryland 21202, USA.

The original Complaint received by e-mail on August 7, 2000 and in hardcopy on August 9, 2000 was amended to correct the name of the Registrar with respect to the domain names "chicagomercantileexchange.net" and

"chicagomercantileexchange.org". (See Amendment to Complaint dated August 16, 2000).

 

3. Procedural History

The Complaint was received by e-mail on August 7, 2000 and in hardcopy on August 9, 2000 by the WIPO Arbitration and Mediation Center. The Center acknowledged receipt of the Complaint on August 11, 2000.

On August 14, 2000 the Complainant advised the Center that the domain names "chicagomercantileexchange.net" and "chicagomercantileexchange.org" were listed with a different Registrar than the one listed in the Complaint. On August 15, 2000 the Center instructed the Complainant to send to the Center an amendment indicating the correct Registrar for each domain name. On August 15, 2000, the Complainant sent an Amendment to the Complaint by e-mail and courier to the Center with copies to the Respondent and the concerned Registrars. The Complainant also sent a copy of the original Complaint by e-mail and courier to Alabanza, Inc. d/b/a Bulkregister.com, the Registrar for "chicagomercantileexchange.net" and "chicagomercantileexchange.org". The Amendment to the Complaint contains revised paragraph 9 referring to the Registrar with whom the domain names were registered; an amended paragraph 29 which refers to the jurisdiction of the courts in the principal office of the concerned Registrars; and an amended paragraph 32 which advises that a copy of the Complaint has been sent to the concerned Registrars.

Requests for Registrar verification were forwarded by the Center to Internet Domain Registrars, dba Registrars.com, the Registrar for "chicagomercantileexchange.com" and to Alabanza, Inc., dba BulkRegister.com, the Registrar for "chicagomercantileexchange.net" and "chicagomercantileexchange.org" on August 15, 2000. On August 15, 2000, Internet Domain Registrars, dba Registrars.com confirmed by e-mail that Allied Pacific Enterprises (S) Pte Ltd. whose address is 541 Orchard Road, Suite 10-01, Liat Towers, Singapore, 570187, Singapore is the current registrant of the domain name "chicagomerecantileexchange.com". On August 17, 2000, Bulkregister.com confirmed by e-mail that Allied Pacific Singapore Technologies Pt whose address is 541 Orchard Road, Suite 10-01, Liat Towers, Singapore, 238881, Singapore is the current registrant of the domain names "chicagomercantileexchange.net" and "chicagomercantileexchange.org".

On September 5, 2000, the Center issued the Center’s Formal Requirements Compliance Checklist verifying that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy, the Rules and the Supplemental Rules and that payment in the required amount had been made to the Center by the Complainant.

On September 5, 2000, the Center forwarded Notification of the Complaint and Commencement of Administrative Proceedings to the Respondent by e-mail and courier. The Center advised the Respondent that a response was due by September 24, 2000.

Respondent did not submit any response by the September 24, 2000 deadline. Accordingly, on October 14, 2000, the Center notified the Respondent that it was in default.

On November 3, 2000, in accordance with Paragraph 6(f) of the Rules, the Center forwarded a Notification of Appointment of Administrative Panel and Projected Decision Date appointing Hariram Jayaram and Jeffrey M. Samuels as the panelists and Ross Carson as the Presiding Panelist, each panelist having submitted a Statement of Acceptance and Declaration of Impartiality and Independence as required by Paragraph 7 of the Rules. The Center advised of the Projected Decision Date of November 17, 2000 in accordance with Paragraph 15 of the Rules. Notification of said appointment was communicated to the Parties by e-mail on the same date.

The Administrative Panel concludes that it was properly constituted and appointed. On November 3, 2000, the Center forwarded a copy of the electronic version of the Complaint to the three panelists by e-mail, advising that a hard copy containing all the attachments was to be sent by courier.

 

4. Factual Background

Because the Respondent has not answered the Complaint, the following facts submitted by the Complainant are undisputed.

a. The Trademarks

The Complaint is based on the ownership of the Trademark/Service Mark CHICAGO MERCANTILE EXCHANGE.

The Complainant Chicago Mercantile Exchange (CME) has used the CHICAGO MERCANTILE EXCHANGE service mark in commerce since at least as early as 1919. CME’s exchange services offered under the CHICAGO MERCANTILE EXCHANGE mark enable international institutions, businesses and individuals to manage their financial risk and allocate their assets through, inter alia, trading futures and options contracts in currencies, interest rates, stock indices and agricultural commodities. CME maintains offices in Chicago, London and Tokyo.

CME owns a United States service mark registration on the Principal Register for the CHICAGO MERCANTILE EXCHANGE mark for "Conducting a security, mercantile, commodity and monetary exchange and providing services connected therewith." registered in 1978 under U.S. Reg. No. 1,085,682. A copy of the certificate of registration is provided as Annex D. Complainant advises that the registration has attained incontestable status which means that the registration is conclusive evidence of CME’s ownership in the CHICAGO MERCANTILE EXCHANGE mark and that the mark is immune from attack on the basis of prior use or descriptiveness. See 15 U.S.C. Section 1115(b).

CME also owns other valid registrations for the CHICAGO MERCANTILE EXCHANGE service mark in Canada, Japan, Switzerland, and the U.K.

CME’s use of the distinctive and famous CHICAGO MERCANTILE EXCHANGE mark has been and continues to be widely publicized through substantial advertising throughout the United States and the world. Many millions of dollars have been spent in connection with such advertising, which has been disseminated through printed literature and via the Internet. Samples of CME’s printed literature featuring the CHICAGO MERCANTILE EXCHANGE mark are attached at Annex E, and portions of CME’s website (www.cme.com) featuring the CHICAGO MERCANTILE EXCHANGE mark are shown at Annex F. Sales of services under CME’s CHICAGO MERCANTILE EXCHANGE mark have amounted to many millions of dollars. As a result, the relevant public has come to associate the name and mark CHICAGO MERCANTILE EXCHANGE with services of a high and uniform quality originating from a single source. Moreover, the CHICAGO MERCANTILE EXCHANGE mark has achieved worldwide fame as a result of: 1) the high degree of acquired distinctiveness of the mark; 2) the duration and extent of use of the mark; 3) the duration and extent of advertising and publicity of the mark; 4) the geographical extent of the trading area in which the mark is used; 5) the absence of third party use of the mark; and 6) the high degree of consumer recognition of the mark. See 15 U.S.C. Section 1125(c).

 

5. Parties’ Contentions

A. Complainant

(i) The domain names "chicagomercantileexchange.com", "chicagomercantileexchange.net" and "chicagomercantileexchange.org" are identical and/or confusingly similar to the CHICAGO MERCANTILE EXCHANGE mark;

(ii) Respondent has no rights or legitimate interests in the domain names "chicagomercantileexchange.com", "chicagomercantileexchange.net" or "chicagomercantileexchange.org" domain names; and,

(iii) Respondent has registered and is using the domain names in bad faith.

(i) Identical or Confusingly similar

With respect to the first element of confusion between the domain names "chicagomercantileexchange.com", "chicagomercantileexchange.net" and "chicagomercantileexchange.org" and the registered trademark CHICAGO MERCANTILE EXCHANGE, Complainant states that Respondent registered the domain name "chicagomercantileexchange.com" on December 13, 1999 and the domain names "chicagomercantileexchange.net" and "chicagomercantileexchange.org" on January 30, 2000. Complainant’s trademark CHICAGO MERCANTILE EXCHANGE was first adopted and used in 1919. Complainant registered the mark CHICAGO MERCANTILE EXCHANGE in the United States in 1978 and in numerous other countries. The mark has acquired distinctiveness and fame.

(ii) Respondent has no rights or legitimate interests in the domain names.

Complainant submits that Respondent does not own a trademark registration covering the mark. The Complainant adopted and has continually used the CHICAGO MERCANTILE EXCHANGE mark since 1919. The Respondent registered the domain names in dispute in December 1999 or January 2000. Moreover, Complainant has neither licensed nor otherwise permitted the Respondent to use the CHICAGO MERCANTILE EXCHANGE mark or to register the domain names incorporating the mark. Respondent is not known by the CHICAGO MERCANTILE EXCHANGE name and is not making non-commercial or fair use of the CHICAGO MERCANTILE EXCHANGE name and mark. Entry of any of the domain names in dispute takes the visitor directly to the Respondent’s website at www.marketplay.com.sg, where visitors are solicited to place wagers as to "which direction the World’s main cash market indices will move during the following trading session,"(Annex G to the Complaint). Complainant has attached a copy of the WHOIS database printout reflecting Respondent’s ownership of the "marketplay.com.sg" domain name (Annex H to the Complaint). Complainant submits that such diversion of Internet traffic to Respondent’s web site, which bears no relation to Complainant’s CHICAGO MERCANTILE EXCHANGE mark, cannot constitute use of the domain names in connection with the bona fide offering of goods or services, but instead represents an attempt by Respondent to trade on the goodwill associated with Complainant’s CHICAGO MERCANTILE EXCHANGE mark.

(iii) Respondent has registered and is using the "chicagomercantileexchange.com", "chicagomercantileexchange.net" and "chicagomercantileexchange.org" domain names in bad faith.

Complainant submits that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website at www.marketplay.com.sg, by creating a likelihood of confusion with CME’s CHICAGO MERCANTILE EXCHANGE mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and/or the services available at Respondent’s website.

Complainant further submits Respondent has registered and is using the "chicagomercantileexchange.com", "chicagomercantileexchange.net" and "chicagomercantileexchange.org" domain names in bad faith, in that Registrant has registered the domain names in order to prevent Complainant from reflecting its CHICAGO MERCANTILE EXCHANGE mark in a corresponding domain name. Complainant submits that Respondent has engaged in a pattern of such conduct, in violation of Paragraph 4(b)(ii) of the Policy, by registering the domain names "chicagomercantileexchange.com", "chicagomercantileexchange.net" and "chicagomercantileexchange.org".

B. The Respondent

The Respondent did not file a Reply.

 

6. Discussion and Findings

Because the Respondent has defaulted in providing a response to the allegations of Complainant, the Panel is directed to decide this administrative proceeding on the basis of the Complaint.

The Rules provide that "the complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder" (Rules, para. 3(c)). In this case, the Panel is satisfied that the domain name registrants

Allied Pacific Enterprises (S) Pte Ltd and Allied Pacific Singapore Technologies Pt are one and the same.

(i) Identical or confusingly similar

The first element which the Complainant must prove is that the domain names are identical or confusingly similar to the Complainant’s trademark or service mark CHICAGO MERCANTILE EXCHANGE.

The domain names "chicagomercantileexchange.com",

"chicagomercantileexchange.net" and "chicagomercantileexchange.org" contain the trademark with the addition ".com", ".net" and ".org".

The domain names "chicagomercantileexchange.com",

"chicagomercantileexchange.net" and "chicagomercantileexchange.org" are confusingly similar to the Complainant’s trademark CHICAGO MERCANTILE EXCHANGE.

(ii) No right or legitimate interest

The second element which the Complainant is required to prove is that the Respondent has no right or legitimate interest in respect of the domain names in dispute. The domain names in dispute suggest some affiliation or connection of the Respondent with the Complainant when there is no such affiliation or connection. The evidence filed by the Complainant shows that entry of any of the domain names in dispute directs the visitor to a web site at www.marketplay.com.sg, where visitors are solicited to place wagers as to "which direction the World’s main cash market indices will move during the following trading session," based on gambling odds quoted at the site.

In the absence of a Response, it is appropriate to accept as true all allegations of the Complaint. Accepting those allegations, the Respondent has not shown any right or legitimate interest in respect of the disputed domain names.

(iii) Registered and used in bad faith

The third element which the Complainant is required to prove is that the disputed domain name has been registered and is being used in bad faith.

Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website at www.marketplay.com.sg, by creating a likelihood of confusion with CME’s CHICAGO MERCANTILE EXCHANGE mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and/or the services available at Respondent’s website. It is clear that Respondent was aware of the Complainant’s mark when it registered the domain names. The Complainant’s name appears in a banner on Respondent’s website (para 21 of the Complaint).

The Respondent registered and is using the domain names in dispute to attract business from persons interested in the Chicago Mercantile Exchange to Respondent’s website www.marketplay.com.sg for Respondent’s commercial gain.

 

7. Summary of Findings

a. The domain names in dispute are confusingly similar to the Complainant’s registered trademark.

b. The Respondent has no right or legitimate interest in respect of the disputed domain names. The disputed domain names promote and suggest a connection or relationship of the Respondent with the Complainant which does not exist.

c. The domain names were registered and are being used in bad faith by the Respondent to attract some customers of the Complainant to a web site at www.marketplay.com.sg, where visitors are solicited to place wagers on movements of the world’s stock markets.

 

8. Decision

In the Complaint, the Complainant requested that in accordance with Paragraph 4(i) "Remedies" of the Uniform Domain Name Dispute Resolution Policy, the Administrative Panel issue a decision that the disputed domain names be transferred to Complainant. The Complainant having proved each of the three elements set out in paragraph 4(a)(i)(ii) and (iii) of the Uniform Domain Name Dispute Resolution Policy is entitled to the decision requested. The Panel requires that the domain names "chicagomercantileexchange.com, chicagomercantileexchange.net and chicagomercantileexchange.org" be transferred to Chicago Mercantile Exchange.

 

 


 

 

Ross Carson
Presiding Panelist

Hariram Jayaram
Panelist

Jeffrey M. Samuels
Panelist

Dated: November 17, 2000

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-0968.html

 

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