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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Philips Electronics N.V. v. K. Harjani Electronics Ltd.
Case No. D2002-1021
1. The Parties
The Complainant is Koninklijke Philips Electronics N.V., of Eindhoven, Netherlands, represented by Koninklijke Philips Electronics N.V. of Netherlands.
The Respondent is K. Harjani Electronics Ltd., of Kowloon, Hong Kong SAR of China, China.
2. The Domain Name and Registrar
2.1 The domain name that is the subject matter of this Complaint is
2.2 The registrar with which the domain name is registered is Register. Com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 4, 2002. On November 4, 2002, the Center transmitted by email to Register.com, Inc. a request for registrar verification in connection with the domain name at issue. On November 4, 2002, Register.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 8, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was November 28, 2002. The Respondent was informed that if his response is not received by that date, he will be considered in default. The Center will still appoint an Administrative Panel to review the facts of the dispute and to decide the case. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2002.
The Center appointed Dr. V. K. Agarwal as the sole panelist in this matter on December 19, 2002. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The Administrative Panel is required to give its decision by January 2, 2003.
4. Factual Background
From the Complaint and the various annexures to it, the Administrative Panel has found the following facts:
The Complainant is the manufacturer of a variety of goods from consumer electronics to domestic appliances, and from security systems to semi-conductors. The trademark "Philips" was registered by the predecessors of Koninklijke Philips Electronics N. V. in the Netherlands. The Complainant has been using the trademark "Philips" for its business activities since 1891. The Complainant is the registered owner of the trademark PHILIPS for the above products. The said trademark is registered with the United States Patent and Trademark office and with registrars of 245 other countries including the United Kingdom, Austria, Benelux, Denmark, Finland, France, Germany, Iceland, Korea and Sweden.
Respondent’s Identity and Activities
The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to this dispute. In relation to element (i), the Complainant contends that the domain name in question is confusingly similar to the "Philips" trademark registered by the Complainant. Addition of the word "calculator" does not make <philipscalculator.com> dissimilar to "Philips", in fact, it is extremely similar. In the case of Mayo Foundation for Medical Education and Research v. John Zucarrini dba Cupcake Confidential – FA 0110000100488 the Panel has found that the domain names <mayodiet.com> and <mayoclinicdiet.com> were confusingly similar to the Complainant’s mark "Mayo" as both contain the Complainant’s mark in its entirety.
In relation to element (ii), the Complainant contends that the Respondent (as an individual, business, or other organization) has not been commonly known by the domain name <philipscalculator.com> as the Respondent is known as "K.Harjani Electronics Limited." Further that the Respondent is not making a legitimate non-commercial or fair use of the said domain name. The Respondent registered the domain name for the sole purpose selling the same to the Complainant.
Regarding the element at (iii), the Complainant contends that on November 30, 2002, after they have made the present complaint, one Mr. Manish N. Sharma of the Respondent has sent a fax to the Complainant stating that, "the offer of the subjected domain name being now available for sale. Please revert to us in this regard immediately save as to cost of both the companies". The Complainant has written "cease and desist" letters to the Respondent but no response was received from the Respondent.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has a right; and
(ii) The Respondent has no right or legitimate interest in respect of the domain name; and
(iii) The domain name has been registered in bad faith and is being used in bad faith.
A. Identical or Confusingly Similar
The present dispute pertains to domain name <philipscalculator.com>. The Complainant is the registered owner of the trademark "Philips" in many countries, including the United States Patent and Trademark Office. The first seven letters, "Philips" have been used in the domain name of the Respondent. They indicate a relationship between the Complainant’s mark and the domain name in question. There is no doubt that the domain name is confusingly similar to the trademark of the Complainant. The Administrative Panel finds that the domain name is confusingly similar to the registered trademark of the Complainant.
B. Rights or Legitimate Interests
According to Paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interest in the domain name by proving any of the following circumstances:
(i) before any notice to the Respondent of the dispute, the Respondent’s 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) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) The Respondent is 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.
The Respondent has not filed any response in this case. It is therefore presumed that the above circumstances do not exist in this case. "Philips" is the registered trademark of the Complainant. It is but evident that the Respondent can have no legitimate interest in the domain name. Further, in view of the fact that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for or use the domain name incorporating the said words and that no body will use the words "Philips" unless seeking to create an impression of an association with the Complainant, the Administrative Panel finds that the Respondent has no rights or legitimate interest in the domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of the domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or 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 documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has 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 it has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 the Respondent’s website or location or of a product or service on its website or location.
The contention of the Complainant is that the present case is covered by the first circumstance. The fax of the Respondent dated November 30, 2002, to the Domain Name Attorney of the Complainant and to the Complainant is ample proof of the fact that the Respondent wants to sell and transfer the domain name to the Complainant. The Administrative Panel agrees with the said contention of the Complainant. Further, the said website has not been activated by the Respondent till the date of filing of the complaint. Thus, "inaction" or "passive" holding of a domain name may also amount to the registration and use of the domain name in "bad faith".
In the light of the forgoing findings, namely, that the domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has a right, that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name was registered in bad faith and is being used in bad faith, the Administrative Panel directs that the domain name <philipscalculator.com> be transferred to the Complainant.
V. K. Agarwal
Date: December 30, 2002