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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sagem v. Turk Domain Masters

Case No. D2001-0965

 

1. The Parties

The complainant in this administrative proceedings is Sagem, a company located at 6, avenue d'Iéna, 75016 Paris, France, hereinafter the "Complainant", and represented by Cabinet Plasseraud, with offices at 84 rue d'Amsterdam, 75009 Paris, France.

The respondent is Turk Domain Masters, with address at Kartaltepe Mah., Mevlana Sokak 1, Bayaumpasa, Istanbul 34170, Turkey, hereinafter the "Respondent".

 

2. Domain Names and Registrar

The domain names at issue are <sagemwap.net> and <sagem-wap.com>, hereinafter the "Domain Names".

The registrar is Network Solutions Inc. The Domain Names were registered on February 24, 2000.

 

3. Procedural History

The WIPO Arbitration and Mediation Center, hereinafter "the Center" received the Complainant's complaint by electronic version on July 30, 2001, and by hardcopy with the exhibits on August 1, 2001.

On August 1, 2001, the Center transmitted via email to Network Solutions Inc a request for Registrar Verification relating to this case. On August 2, 2001, Network Solutions Inc transmitted via email to the Center, the Verification Response, confirming that a copy of the complaint has been sent to Network Solutions Inc, that the Domain Names are registered with Network Solutions Inc, and that the Respondent is the current registrant of the Domain Names. It provided the full contact details related to the Domain Names available in its database, confirmed that the Uniform Dispute Resolution Policy is applicable and that the Domain Names registrations are on "Hold" status.

On the same day, the Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Names Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Dispute Resolution Policy (the Rules), and the WIPO Supplemental Rules for Uniform Domain Names Dispute Resolution (the Supplemental Rules).

On August 9, 2001, the Center transmitted to the Respondent the Notification of Complaint and Commencement of the Administrative Proceeding and a copy of the complaint via post/courier and email in accordance with the following contact details provided by the Registrar and Complainant.

This notification has been copied to the Complainant via email.

The Center advised that the response was due by August 29, 2001.

On August 30, 2001, having received no response from the Respondent, the Center issued to the email address of both parties a Notification of Respondent Default. No reply by the Respondent to the Notification of Respondent Default was received.

On September 11, 2001, in view of the Complainant’s designation of a single panelist, the Center invited Mr. Geert Glas to serve as a panelist and transmitted to him the Request for Declaration of Impartiality and Independence and a Statement of Acceptance.

Having received, on September 11, 2001, Mr. Geert Glas' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted on September 13, 2001, to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date by e-mail, in which Mr. Geert Glas was formally appointed as the Sole Panelist. On the same day, the Center transmitted to the Sole Panelist the Case File and the electronic format of the complaint. The hard copy and the exhibits have been received on September 14, 2001. The Projected Decision Date is September 26, 2001.

The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.

Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under Paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore the Administrative Panel shall issue its Decision based on the complaint, the Policy, the Rules, the Supplemental Rules and the verifiable facts but without the benefit of any response from Respondent.

 

4. Factual Background

The Complainant has registered the trademark "SAGEM" as a French trademark for goods and services of classes 1 to 42 and as a Community trademark for goods and services of classes 7, 9, 12, 37, 38 and 42.

The Complainant is mainly known by the public for its activities in the telecommunication sector. It is active in a number of countries, including Turkey.

Recently, the Complainant has launched the commercialization, as part of its telecommunication activities, of mobile phones equipped with the WAP (Wireless Application Protocol) function.

The Respondent had registered the Domain Names on February 24, 2000.

The website linked to the Domain Names is, at the date of this decision, under construction.

On August 7, 2000, the Complainant sent a letter, by regular mail and by email, to the Respondent urging him to transfer the Domain Names.

This letter remained unanswered.

On August 9, 2001, after the introduction of this proceedings, the Respondent sent an email to the Center explaining its position and stating that it never bought the Domain Names, that they have been given for free for a period of three months by the registrar, and that they were only taken "for fun". It contended that it was still the registrant of these Domain Names only because the Registrar did not take them over and that its purpose was certainly not to sell them. The Center forwarded these communications to the Complainant.

In the WHOIS database, under the name and address of the Respondent, appear the words "FOR SALE".

 

5. Parties Contentions

a. Complainant

The Complainant contends that the Domain Names are similar to its trademark.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Names since it has no prior rights on the Complainant's trademark, since the parties have no legal link between them and since the Complainant has never given authorization to the Respondent to register its trademark as a domain name.

The Complainant contends that the Respondent has registered the Domain Names in bad faith. It contends that the Respondent could not have been unaware of its notoriety and of its activities in the mobilophony business and that by registering the Domain Names, it intended only to benefit from this notoriety. It contends also that the Domain Names were registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the Domain Names registrations to the Complainant or to a competitor. Finally, it contends therefore that, by registering the Domain Names, the respondent intentionally attempted to attract for financial gain, internet users to the registrant's online location, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the registrant's location.

b. Respondent

Respondent has not filed a response with the Center and is in default.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(1) that the Domain Names registered by the Respondent are identical or confusingly similar to the trademark in which the Complainant has rights; and,

(2) that the Respondent has no rights or legitimate interests in respect of the Domain Names; and,

(3) that the Domain Names has been registered and used in bad faith.

a. Identity or confusing similarity

The Complainant has registered the trademark "SAGEM".

"WAP" is the abbreviation of "Wireless Application Protocol".

The term WAP is now used as a generic term to describe the mobile phones providing this function.

The Domain Names consist of the Complainant's trademark to which the word 'WAP' is added.

In view of the genericness of this addition WAP and its widespread use in the same (telecommunication) sector where the Complainant's trademark is used, the Domain Names are still confusingly similar to this trademark.

The Administrative Panel therefore finds that the Domain Names is confusingly similar to the Complainant's trademark and finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied.

b. Rights or Legitimate Interests

The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name corresponding to its trademark.

There is no indication that the Respondent has registered or used the name "sagemwap" as a trademark, or has ever been known by this name.

Moreover, by not filing a response, the Respondent has failed to invoke any circumstance which could indicate the existence of any right or legitimate interest he would have in the Domain Names.

Therefore the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is satisfied.

c. Registration and Use in Bad Faith

The Complainant's trademark is widely used and broadly known in the telecommunication sector. The choice of the Domain Names (consisting of this trademark to which the telecommunication term WAP is added) by the Respondent can therefore not result from a mere coincidence.

As the Respondent could not have been unaware of the Complainant's trademark, by knowingly choosing Domain Names consisting of the Complainant's trademark with a generic word specific of an area of the Complainant's business, the Respondent intentionally created a situation which is at odds with the legal rights and obligations of the parties.

Nineteen months after the registration of the Domain Names, the website related to the Domain Names is still under construction.

In the WHOIS databases, the name and address of the Respondent are followed by the words "FOR SALE". The Panel finds that this mention shows unequivocally that Respondent had registered the Domain Names primarily for the purpose of selling, renting, or otherwise transferring the registrations to the Complainant or to a competitor.

The Respondent was in default to respond in this proceeding, thereby failing to invoke any element or circumstance which could indicate the good faith nature of his registration and use of the Domain Names.

Such good faith cannot be deduced either from the e-mail which Respondent sent on August 9, 2001, and in which it was stated that the Domain Names were only registered "for fun".

Considering the lack of interest of the Respondent in the Domain Names, in the defense of his rights and interests as to the Domain Names and the above facts, the Administrative Panel finds that the Complainant has met its burden under section 4(a)(iii) of the Policy and that the Respondent has registered and used the Domain Names in bad faith.

 

7. Decision

In light of the foregoing, the Administrative Panel decides that the Domain Names registered by the Respondent are confusingly similar to the Complainant's trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Names, and that the Respondent’s Domain Names have been registered and are being used in bad faith.

Accordingly, pursuant to Paragraph 4(i) of the Policy, the Administrative Panel requires that the registration of the Domain Names <sagem-wap.com> and <sagemwap.net> be cancelled.

 


 

Geert Glas
Sole Panelist

Dated: September 26, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0965.html

 

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