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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Society of Lloyd’s v. Lost In Space S.A.
Case No. D2002-0550
1. The Parties
The Complainant is The Society of Lloyd’s, a society incorporated by the Lloyd’s Act 1871 (Act of Parliament, United Kingdom) of One Lime Street, London EC3M 7HA, United Kingdom. Represented by Nicholas P Demery, a solicitor within the Legal Services Department of the Complainant.
The Respondent is Lost in Space S.A. of Suite 562, Henderson, Nevada 89014, United States of America. The Respondent is not represented.
2. The Domain Name and Registrar
The domain name in issue is <lloydslondon.com>.
The domain name is currently registered with Innerwise, Inc., doing business as Itsyourdomain.com ("Innerwise") of 1005 West Wise Road, Schaumburg, Illinois 60193, United States of America.
3. Procedural History
3.1 On June 14, 2002, the Complaint was received by email at the WIPO Arbitration and Mediation Center ("the Center") pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy"), adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, the Rules for Uniform Domain Name Resolution Policy also adopted by ICANN on August 26, 1999 ("the Rules"), and the World Intellectual Property Organization ("WIPO") Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") effective as of December 1, 1999.
3.2 The Center issued an Acknowledgement of Receipt on June 16, 2002.
3.3 A hard copy of the Complaint was received by the Center on June 18, 2002.
3.4 The Center sent a Request for Registrar Verification to Innerwise on June 16, 2002. On June 19, 2002, Innerwise confirmed (except in relation to (1), which was confirmed on June 21, 2002): (1) that a copy of the Complaint was sent to Innerwise by the Complainant as required by the Supplemental Rules, (2) that Innerwise is the Registrar for the disputed domain name, (3) that the Respondent was the current registrant of the domain name, (4) that the Respondent’s contact details were as set out above, (5) that the Policy applies to the domain name, (6) the current status of the domain name was "lock", (7) the language of the registration agreement was English, and (8) the Respondent has submitted in its registration agreement to the jurisdiction at the location of the principal office of the Registrar for court adjudication of disputes concerning or arising from the use of the domain name.
3.5 On June 20, 2002, the Center completed its formal requirements compliance checklist and issued its Notification of Complaint and Commencement of Administrative Proceeding to the Respondent, as well as to its administrative, billing and technical contacts (named as Helen Bradbury), and to the Complainant. The Respondent was required to send its Response no later than July 12, 2002.
3.6 The Respondent has filed no Response in reply to the Notification of Complaint and the Center issued a Notification of Respondent Default on July 12, 2002.
3.7 On July 18, 2002, Mr. Debrett Lyons transmitted a Declaration of Impartiality and Independence and a Statement of Acceptance to the Center to act as sole Panelist.
3.8 On July 19, 2002, the Center issued a Notification of Appointment of Administrative Panel.
4. Factual Background
4.1 The Complainant is the world’s oldest and leading insurance market, having been in existence for over 300 years. The Complainant, throughout this period, has been known as "Lloyd’s" or "Lloyd’s of London". Underwriters in the Lloyd’s market combine to form syndicates and have the capacity in year 2002 to accept insurance premiums of more than Ј12 billion. There are 86 syndicates covering all classes of business in more than 100 countries worldwide. Approximately 5% of world reinsurance is placed at Lloyd’s, and the Lloyd’s market accounts for half of the London market’s international insurance premiums.
4.2 The Complainant holds hundreds of registered trademarks worldwide. The Panel will not list all trademarks held by the Complainant and submitted in list form as evidence, save for the following registrations in Canada for "LLOYDS LONDON":
No. 349581 in class 36 (expiring on December 23, 2003)
No. 346992 in class 36 (expiring on October 21, 2003)
4.3 A third party named "Stealth Commerce" first registered the domain name on January 21, 2002. The website accessed via the domain name originally advertised the services of an escort agency. The Complainant wrote to Stealth Commerce on March 6, 2002, and again on April 3, 2002, asserting its trademark rights, requesting Stealth Commerce cease using the domain name and requesting a transfer to the Complainant for cost.
4.4 Helen Bradbury (who was listed as Stealth Commerce’s administrative contact on the WHOIS database) responded on April 3, 2002, and offered to sell the domain name to the Complainant for $2,500.
4.5 Stealth Commerce then transferred the domain name to the Respondent and a new website was set up advertising and selling pornographic material.
4.6 On May 10, 2002, the Complainant wrote to Juan Miguel by email (who was listed as the Respondent’s administrative contact on the WHOIS database on May 10, 2002) asserting its trademark rights, requesting the Respondent cease using the domain name and requesting a voluntary transfer of the domain name to the Complainant.
4.7 Juan Miguel responded on May 10, 2002, and offered to sell the domain name to the Complainant for $2,500.
4.8 On May 13, 2002, Helen Bradbury (who is currently listed as the Respondent’s administrative contact on the WHOIS database) again offered to sell the domain name (without stating a sale price).
4.9 The Complainant wrote to the Internet service provider hosting the website, DirectNic, on May 13, 2002, and requested the website be taken down because of the pornographic nature of the content. DirectNic took down the website and replaced it with a holding notice.
4.10 On May 23, 2002, the Complainant noticed the website had been reactivated. Internet users entering the domain name were automatically transferred to the website "www.girlhire.com" which promoted an escort agency and included pornographic material.
4.11 At an unknown date after DirectNic took down the website as described in paragraph 4.9 above, the Respondent changed its hosting provider to OnlineAccess, an affiliate of Innerwise. On May 23, 2002, the Complainant emailed Innerwise and OnlineAccess, following which the forwarding service was suspended and an "ItsYourDomain" holding page was placed on the website.
4.12 No other factual information is known about the Respondent.
5. Parties’ Contentions
5.1 The Complainant seeks the transfer of the domain name from the Respondent to the Complainant in accordance with the paragraph 4(b)(i) of the Policy.
5.2 The Complainant contends that the domain name in issue is identical or confusingly similar to the trademarks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain name in issue, and that the domain name in issue was registered and is being used in bad faith.
5.3 No Response having been filed, the Complainant’s contentions have not been rebutted.
6. Discussion and Findings
6.1 Since the Respondent has not submitted a Response, the Panel can only decide the case on the basis of the evidence submitted by the Complainant in accordance with paragraph 5(e) of the Rules.
"If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint."
6.2 Even though there has been no Response the Panel must still, under paragraph 14(a) of the Rules, "proceed to a decision on the complaint".
6.3 Paragraph 4(a) of the Policy states that in order to be successful, the Complainant must prove the three elements listed in paragraph 4(a). The Panel will now consider in detail each of the three elements:
4(a)(i) your domain name is identical or confusingly similar to a trademark in which the Complainant has rights
6.4 The Complainant has registrations for the trademarks set out in paragraph 4.2 above. The two trademarks cited above are identical to the domain name and many others currently registered by the Complainant are confusingly similar, the main difference being the absence of the word "of" in the domain name which appears in the many other registered trademarks. Therefore, in the view of the Panel, paragraph 4(a)(i) is proved by the Complainant.
4(a)(ii) you have no rights or legitimate interests in respect of the domain name
6.5 The Respondent has failed to contest the allegations of the Complainant that it lacks any rights or legitimate interests in the disputed domain name.
6.6 However it can only be assumed that the Respondent’s motive in registering the domain name was use of the domain name to attract an Internet audience seeking the Complainant’s website and to divert that audience to its different websites unrelated to Lloyds of London.
6.7 Paragraph 4(c) of the Policy sets out the ways in which a Respondent can show rights or legitimated interests in a disputed domain name:
"(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue"
6.8 None of the criteria listed above can be met by use of the domain name to divert the Complainant’s Internet audience to the Respondent’s unrelated websites. There is no suggestion that the Respondent is commonly known by the name "lloyds london" or that it has acquired any trademark or other legitimate interests in that name.
6.9 Since no circumstance has been evidenced by the Respondent that could support an inference in its favour under paragraph 4(c) of the Policy, the Panel finds that the Respondent has no rights or legitimate interests to the domain name and that paragraph 4(a)(ii) has been proved.
4(a)(iii) the domain name has been registered and is being used in bad faith
6.10 By failing to file a Response, the Respondent has done nothing to contest the allegations of the Complainant that the domain name has been registered and is being used in bad faith.
6.11 Paragraph 4(b) sets out illustrative circumstances that constitute evidence of registration and use in bad faith:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern or such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
6.12 No arguments have been advanced by the Complainant in relation to paragraphs (ii) or (iii) of the bad faith criteria.
6.13 In relation to paragraph (i) the Complainant asserts that the Respondent acquired the domain name primarily for the purpose of selling or otherwise transferring the domain name for valuable consideration in excess of its out-of-pocket expenses.
6.14 The repeated offer to sell the domain name for $2,500 is clear evidence of an intention to sell in excess of out-of-pocket expenses.
6.15 In relation to paragraph (iv) the Complainant asserts that the Respondent used the domain name intentionally to attract, for commercial gain, Internet users to its websites, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the websites.
6.16 The use of the trademark in the domain name was intended to cause confusion on the part of Internet users seeking the website of the Complainant. The Respondent used the domain name to attract the Complainant’s Internet audience and forward that audience to the Respondent’s websites for commercial gain.
6.17 The use of the domain name to forward Internet users to the Respondent’s pornographic websites in itself constitutes bad faith. (See CCA Industries, Inc. v. Bobby R. Daily (WIPO Case No. D2000-0148) (April 26, 2000), where the Panel stated that "this association with a pornographic website can itself constitute bad faith".)
6.18 The Panel therefore finds that the Complainant has established registration and use of the domain name by the Respondent in bad faith.
7.1 Taking into consideration the Complaint, the Policy, the Rules and the Supplemental Rules, the Panel decides that:
(i) the domain name is identical to the two trademarks listed in paragraph 4.2 in which the Complainant has rights under paragraph 4(a)(i) of the Policy;
(ii) the domain name is confusingly similar to numerous other trademarks in which the Complainant has rights under paragraph 4(a)(i) of the Policy;
(iii) the Respondent has no rights or legitimate interests in the domain name under paragraph 4(a)(ii) of the Policy; and
(iv) the domain name was registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy.
7.2 The Panel orders that the domain name shall be transferred to the Complainant.
Dated : August 2, 2002