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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Océ-Technologies B.V. v. oce.net (dom-114240)
Case No. D2002-0047
1. The Parties
The Complainant is Océ-Technologies B.V., a company incorporated under the laws of the Netherlands, with its registered address and principal place of business at St. Urbanusweg 43, 5914 CA Venlo, the Netherlands.
The Respondent is – according to the Whois’ database of Alldomains. Com Inc., the registrar with whom the domain name concerned in the dispute is registered – oce.net (DOM –114240), 5 Tpagrichnery, Suite 33 Terevan, Armenia 375010 AM.
2. The Domain Name
The domain name at issue is <oce.net>, registered with Alldomains. Com Inc. on June 19, 2001.
3. Procedural History
A complaint was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on January 18, 2002. Its receipt was acknowledged to the Complainant by the WIPO Center on January 23, 2002. On January 26, 2002, the WIPO Center received a Registrar Verification issued by Alldomains.Com Inc. Payment of the administration fee was duly received. The Center undertook a Formal Compliance Review, verifying that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Uniform Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") and the World Intellectual Property Organization Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"), in the course of which a request for amendment of the complaint was issued by the Center on January 28, 2002. The required amendment was received the same day. On January 29, 2002, the formal compliance check was completed and a Notification of Complaint and Commencement of Administrative Proceeding was issued, followed by a Response Default Notification on February 20, 2002. On January 30, 2002, the Complainant and the Center had received an electronic message from "Nashi Imena <quotes@DomainResearch.org>: "Hello, If you compensate my expenses of $450.00 USD and withdraw the UDRP, I will transfer the domain name to you within 2 days. Let me know if interested. Best regards, Nashi Imena". As Subject the message refers to the Complaint Deficiency Notification issued by the Center on January 28, 2002.
The Complainant chose to have the dispute decided by a single-member Administrative Panel. There having been no other response to the complaint than the message by Nashi Imena, the Panel was properly constituted on February 28, 2002, the formal date set for commencement of this administrative proceeding. It was founded on a Statement of Acceptance and Declaration of Impartiality and Independence dated February 28, 2002. A Notification of Appointment of Administrative Panel and Projected Decision Date was properly issued on that same date, indicating as single panelist Gunnar Karnell.
WIPO Center forwarded to the Panel by courier mail the relevant documents, which were received on March 2, 2002. Pursuant to Rule 5 (b), in the absence of exceptional circumstances, the Panel is required to forward its decision by March 14, 2002.
4. Factual Background
The Complainant is a subsidiary of Océ N.V., a public company incorporated under the Laws of the Netherlands. This company is one of the leading ones engaged in supplying document managing systems including engineering, manufacturing and marketing of copying, printing, scanning and related equipment, pertaining software, services and supplies. Complainant is engaged in this same kind of business, performing its activities under and by reference to "Océ" as its trademark. This has been registered by the Complainant in the Netherlands since 1930 and in the USA since 1931. It is used by the Océ Group world-wide ever since and it has also been registered world-wide. Complainant also uses oce in a number of domain names (e.g. <oce.com> and <oce.info>).
5. Parties’ Contentions
A. Complainant (short summary; and request for remedy)
Complainant has explained the Respondent’s activities related to the domain name as follows:
At least since October 2001, the domain name was registered and used by the Respondent, having most probably registered both or either of the following web-pages: http://www.offers.NameRegister.com (here called: Nrsite) and http://www.domain-for-sale.mancy.com (here called Mancy-site), containing invitations to make offer to purchase amongst others the domain name <oce.net>. In October Complainant found that the Respondent had registered the domain name at issue and used it to divert traffic to the Nrsite. On November 22, 2001, Complainant found that the Registrant of the domain name <oce.net> had been changed. A new Registrant,<Domain for sale- http://www.offers.NameRegister.com> (here "Dmfor sale") had registered the domain name and used it to divert traffic to the same web-site, Nrsite. There, the new web site Registrant invited to make an offer to purchase, among others, <oce.net>. The Nrsite specially claimed that any offer below USD 550 would be ignored. Also, the new Registrant used the domain name to divert traffic to several web-sites which offered pornographic material, using the same e-mail address email@example.com as the one presently used by the Respondent. Complainant tried to contact "Dmfor sale" at its e-mail address <firstname.lastname@example.org>, but when it did not reply Complainant offered USD 550 to the same e-mail address. The offer was turned down and the Complainant was told that it could buy the domain name for USD 3,400, an offer which was refused. From this moment the identity of the Registrant of the domain name constantly changed. After registration by "Dmfor sale" the domain name has been registered at DOMAINRESEARCH.ORG by another Registrant, called "Web Master, Research Institute", in Finland, using the domain name to divert traffic to http://www.domainresearch.org/quotes, for purchase offers about the domain name, mentioning that any offer should be for more than USD 450. This Registrant used the domain name also to divert traffic to several web-sites, which offered pornographic material. Again the Registrant changed. Now, the Registrant is again oce.net, as it was roundabout November 22, 2001. Its Administrative Technical, Zone and Billing Contact is the "Dmfor sale", against whom the Complainant intended to start and prepared a proceeding. The Respondent is – in the view of the Complainant – the same as the former Registrants oce.net and "Dmfor sale", using the domain name to operate a portal site until approximately January, 2002. The same portal appeared at the Mancy-site. Then, approximately on January 15, 2002, the Respondent used the domain name for a simple search engine appearing on the Mancy-site. Presently, the web-site <www.oce.net> and the domain name <oce.net> are used as a web-guide with reference to a casino link and a link where a software program can be downloaded to prevent the control of the use of computers, appearing also on the Mancy-site.
1) The Respondent’s domain name <oce.net> is confusingly similar to Complainant’s registered trademark "océ". The "Océ" brand name is the company’s most important asset.
2) The Respondent has no rights or legitimate interest in the domain name <oce.net>. The domain name, incorporating the word "oce", has been registered without any authorisation from the Complainant. The Respondent intends to prevent the Complainant from using the domain name and to confuse the public as to the source, sponsorship or affiliation with its trademark "Océ", particularly in the field of related products. The Respondent uses the web-guide Mancy-site, and the domain name to divert traffic to a web-site offering pornographic material.
3) The Respondent has registered the domain name <oce.net> and uses it in bad faith.
The registration is detrimental to the business of the Complainant. It has occurred for the purpose of preventing the trademark owner from reflecting the mark in a corresponding domain name in order also to disrupt the business of the Complainant and speculating on the profitability of the domain name, e.g. as related to an intention, on the part of the Respondent, to transfer the domain name for valuable consideration, by selling it to the Complainant for profits. The Respondent clearly has had no demonstrable plan to use the domain name for a bona fide purpose prior to the registration or acquisition of the domain name.
4) The Complainant has requested, in accordance with Paragraph 4 i. of the Uniform Policy, that the Administrative Panel transfer the domain name <oce.net> to the Complainant.
There has been no other response from the Respondent than the email message mentioned here above under 3.
6. Discussion and Findings
On the basis of the Complainant’s submissions and evidence introduced by the Complainant, and in particular with regard to the content of the relevant provisions of the Uniform Policy (paragraph 4. a. to c.), the Administrative Panel considers that the case does not deserve any lengthy arguments on its part.
A. The domain name <oce.net> is confusingly similar to the registered trade mark "Océ". The added gTLD .net and the absence in the domain name of the stress-mark (ґ) do not affect this assertion. The trademark "Océ" is a well known mark with world-wide recognition in a large and vital market sector of products and services. The public to which the trademark "Océ" is directed will, notwithstanding the evident differences in present uses of the domain name on the part of the Respondent, be confused to believe that, or at least to reflect upon how, the domain name connects to products and services of the Complainant or to those of someone authorised by the Complainant, thereby causing negative effects to the good-will of the trademark.
B. Evidence provided by the Complainant shows that the Respondent has no rights, nor any legitimate interest, in respect of its domain name. Any use by the Respondent of the trademark, for any possible goods or services in the market of the Complainant, would require its permission. No such permission has been given. It can not be accepted that a domain name is used for bargaining of the kind evidenced in the present case.
C. The Respondent has been shown to have registered the domain name in bad faith and to misuse the domain name system to the detriment of a legitimate trade mark right holder, the Complainant. The Respondent’s varied but presently established possession of the registration of the domain name <oce.net>, characterised as described here above, constitutes conclusive evidence that the name is being used in bad faith. There have been offers for sale of the domain name in excess of documented out of pocket costs related to it. The reply by Respondent to the Complainant and the Center about willingness to let the name be transferred upon conditions mentioned tells – in view of supported arguments by the Complainant about the Respondent’s activities related to the domain name – conclusively against the Respondent under the circumstances evidenced in the case.
D. The Administrative panel concludes that all elements mentioned in the Uniform Policy under article 4 a. (i)-(iii) are present in the case.
The Administrative Panel requires that the registration of the domain name <oce.net> be transferred to the Complainant.
Dated: March 11, 2002