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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Shell International Petroleum Company Limited, Shell Trademark Management B.V. v. Domains - Best Domain
Case No. D2003-0066
1. The Parties
The Complainants are Shell International Petroleum Company Limited, Shell Centre, London, SE1 7NA, United Kingdom of Great Britain and Northern Ireland; and Shell Trademark Management B.V., Carel van Bylandtlaan 30, 2596 HR, The Hague, Netherlands. The Complainants are represented by Kimbley L. Muller of Shell Oil Company, United States of America.
The Respondent is Domains - Best Domain, of the Bronx, NY 10471, of the United States of America.
2. The Domain Name and Registrar
The disputed domain name <wwwshell.com> (the "Domain Name") is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 30, 2003. On January 30, 2003, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On January 30, 2003, eNom 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. On February 4, 2003, the Center notified the Complainants that the Complaint was administratively deficient, as the wrong registrar had been named. In response to this notification by the Center, the Complainants filed an amendment to the Complaint on February 4, 2003. The Center verified that the Complaint, together with the amendment to 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 February 5, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was February 25, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 26, 2003.
The Center appointed Michelle Brownlee as the sole panelist in this matter on March 10, 2003. 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.
4. Factual Background
The Complainants are affiliated companies operating within the world-wide Royal Dutch Shell group of companies. The "SHELL" marks in the United States are owned by Shell Trademark Management B.V. through assignment from Shell Petroleum Inc., which received its rights from Shell Oil Company. Shell International Petroleum Company Limited is the owner of the "SHELL" trademarks throughout the remainder of the world, other than in North America.
5. Parties’ Contentions
Complainants are the proprietors of over 4,027 registered trademarks throughout the world which comprise the word SHELL and 3,221 additional registrations of which the word SHELL is the dominant feature. SHELL trademarks have been used since at least as early as 1904 on a variety of goods and services including, but not limited to, petroleum goods and services, gasoline, motor oil, chemicals, credit card services, gasoline stations and convenience stores, foodstuffs, apparel, Internet services and Information Technology services. SHELL is one of the most popular gasoline brands in the world with over 45,000 sites world-wide serving approximately twenty million customers per day.
Respondent registered the domain name <wwwshell.com> on November 20, 2002. Respondent has linked the Domain Name to the "abortionismurder.org" website.
Complainants assert that the Domain Name is identical or confusingly similar to the SHELL trademark. Complainants also contend that Respondent is a habitual cybersquatter who has repeatedly linked domain names that are confusingly similar to well-known trademarks to the "abortionismurder.org" website. Complainants argue that Respondents have no right or legitimate interest in using the Domain Name. Finally, Complainants submit that Respondent registered and used the Domain Name in bad faith as evidenced by the fact that Respondent offered to sell the Domain Name for $549.00 after Complainants sent a cease and desist letter to Respondent.
The Respondent did not reply to the Complainants’ contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name is identical to Complainants’ trademark and website address except for the addition of the letters "www" before the mark. Pairing of Complainants’ famous trademark with the letters "www" is likely to appear to Internet users as though the domain name is identical to Complainants’ trademark, because most URLs include "www" followed by a period before the second level domain name, and Internet users would most likely not notice the omission of the period. Other panels have found confusing similarity under similar circumstances. See, e.g., Reuters Limited v. Global 2000, Inc. (WIPO Case No. D2000-0441, July 13, 2000). Accordingly, the Panel finds that the Domain Name is confusingly similar to Complainants’ trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue
Respondent has not provided any evidence of rights or legitimate interest in the Domain Name. Respondent has not presented evidence that it used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that it is commonly known by the Domain Name or that it is making a noncommercial or fair use of the domain name. Accordingly, the Panel finds that Respondent does not have any right or legitimate interest in the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a 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 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 the respondent 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 online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.
Complainants has presented evidence that Respondent offered to sell the Domain Name for $549.00, which indicates that Respondent acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainants for valuable consideration in excess of out-of-pocket costs in violation of Paragraph 4(b)(iv) of the Policy.
Complainants has also provided evidence that Respondent has engaged in a pattern of this type of activity, citing Advance Magazine Publishers Inc. v. Buy This Domain, WIPO Case No. D2002-0803 (November 1, 2002) <vougemag.com>; Automobiles Peugeot SA v. Good Domains, Formerly Domains For Sale Inc., WIPO Case No. D2002-0805 (October 28, 2002) <wwwpeugot.com>; Barnes & Noble College Bookstores, Inc. v. Good Domains, WIPO Case No. D2002-0812 (October 21, 2002) <barnesandnobleonline.com>; Marie Claire Album S.A. v. Buy This Domain, WIPO Case No. D2002-0677 (September 4, 2002) <marieclairemagazine.com>; Peabody Management, Inc. v. John Barry, d/b/a Domains for Sale, Inc., WIPO Case No. D2002-0552 (July 30, 2002) <thepeabodyorlando.com>; Prada S.A. v. Domains For Sale Inc., WIPO Case No. D2002-0512 (July 30, 2002) <wwwprada.com>; Southern California Edison Company v. John Simms, WIPO Case No. D2002-0369 (June 11, 2002); <southerncaliforniaedison.com>; University of Central Arkansas v. John Simms and John Barry, WIPO Case No. D2002-0316 (May 31, 2002) <universityofcentralarkansas.com>; United Artists Theatre Circuit, Inc. v. Domains for Sale Inc., WIPO Case No. D2002-0005 (March 27, 2002) <unitedartiststheatres.com>. Although the respondents in these cases go by different names, they use the same or similar addresses and contact information and all linked the domains to the "abortionismurder.org" website. In many of those cases, the Respondent used a name or an email address that indicated a desire to sell the domain name. Accordingly, Complainants has also demonstrated that the Respondent has repeatedly engaged in bad faith registration and use of domain names, which serves to reinforce the Panel’s decision that the Respondent’s use and registration in this case is in bad faith in violation of Paragraph 4(b)(iv) of the Policy.
It also bears mention that Respondent’s "typosquatting" – i.e., use of a common typographical error that Internet users make when they are likely trying to find a website associated with Complainants to direct traffic to another site – can be viewed as evidence of bad faith, even though this activity is not covered by the enumerated factors in Paragraph 4(b). See, e.g., The Nasdaq Stock Market, Inc. v. Shawn Cain d/b/a Star Inc., WIPO Case No. D2002-1125 (January 27, 2003).
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant Shell International Petroleum Company Limited.
Date: March 15, 2003