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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cingular Wireless LLC v. V T X, Inc.
Case No. D2003-0446
1. The Parties
The Complainant is Cingular Wireless LLC, C/O Christopher M. Arena, Esq., Atlanta, Georgia, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.
The Respondent is V T X, Inc., Las Vegas, Nevada, United States of America.
2. The Domain Name and Registrar
The disputed domain name <cingularporn.com> is registered with Go Daddy Software (the "Registrar").
3. Procedural History
The Complaint was filed electronically with the WIPO Arbitration and Mediation Center (the "Center") on June 10, 2003. On June 11, 2003, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On June 11, 2003, the Registrar 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 June 13, 2003, the Center received the Complaint in hardcopy. 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 June 16, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 6, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 8, 2003.
On July 19, 2003, the Center received a communication from the Respondent and a Reply thereto from the Complainant. On July 22, 2003, the Center received a request from the Complainant that the proceedings be suspended while the parties pursued a possible settlement. On the same date the Center issued a Notice of Suspension.
On August 8, 2003, the Center received from the Complainant a Request for Reinstatement of the proceeding, and on August 11, 2003, the Center issued its Notification of Reinstatement of Proceeding.
The Center appointed M. Scott Donahey as the Sole Panelist in this matter on August 12, 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.
On August 28, 2003, the Panel received an email communication from the Respondent. The email was sent in violation of paragraph 12 of the Rules, in that the Panel had not requested further written statements, in violation of paragraph 8 of the Rules, which precludes direct communication between a Party and the Panel and requires that all communication between a party and the Panel be made via the case administrator, and in violation of paragraph 2(h)(iii) of the Rules, which requires that all communications by a party be copied to the other party and to the Provider. Accordingly, the communication noted was neither read nor considered in any way.
4. Factual Background
Complainant is the holder of United States trademarks and service marks consisting of CINGULAR or of CINGULAR and other common English words. The complainant has also filed numerous applications with the United States Patent and Trademark Office ("USPTO"). The earliest filed pending application was filed on September 7, 2000, and the earliest issuing registration issued July 16, 2002.
Complainant was formed in 1999 as the result of a merger of two of the largest wireless telecommunications providers in the United States. Complainant adopted and began using the CINGULAR mark in January 2001, and has continuously done business under the name "Cingular." Its trademarks have been heavily promoted in all of the media in the United States, and Complainant has expended in excess of one hundred million U.S. dollars in their promotion. Complainant has established a website to which the domain name <cingular.com> resolves and on which Complainant offers telecommunications products and services.
Respondent registered the domain name at issue on August 26, 2002. Respondent sends erotic images to subscribers’ wireless telephones and devices. Respondent maintains a website at "www.pocketjoy.com." Complaint, Annexes F and H. Respondent has dedicated a portion of this website to address subscribers of Complainant. Complaint, Annex J.
On November 5, 2002, and again on December 2, 2002, attorneys for Complainant sent Respondent a cease and desist letter. Complaint, Annexes K and L. Respondent replied by denying any responsibility.
On December 20, 2002, Complainant received an email from a Mr. Michaels advising Complainant that Respondent was "liquidating the cingularporn.com domain name on ebay." Complaint, Annex M. The starting bid was set at US$5,000. Complaint, Annex N.
Complainant later learned that Respondent transferred ownership of the domain name to Domains by Proxy, a service designed to protect the privacy of its clients and to conceal the ownership of domain names. On March 10, 2003, Complainant’s attorneys contacted Domains by Proxy regarding the allegedly infringing registration of the domain name. Domains by Proxy advised Complainant that Respondent had recently terminated its relationship with Domains by Proxy. Complaint, Annex O.
5. Parties’ Contentions
Complainant contends that the domain name at issue is confusingly similar to marks in which Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain name at issue, and that the domain name at issue was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the 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."
Since both the Complainant and Respondent are domiciled in the United States, and since United States’ courts have recent experience with similar disputes, to the extent that it would assist the Panel in determining whether the Complainant has met its burden as established by Paragraph 4(a) of the Policy, the Panel shall look to rules and principles of law set out in decisions of the courts of the United States.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
2) that the Respondent has no rights or legitimate interests in respect of the domain name; and
3) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has proved its rights in the mark CINGULAR and related marks.
Since the domain name at issue incorporates the well-known trademark of Complainant,
it is confusingly similar to Complainant’s mark. Wal-Mart Stores v. Richard
MacLeod, d/b/a For Sale, WIPO Case No.
D2000-0662, at 5.
B. Rights or Legitimate Interests
Complainant has in a credible way alleged and Respondent has failed to show
that Respondent has any rights or legitimate interests in respect of the domain
name at issue. This entitles the Panel to infer that Respondent has no rights
or legitimate interests in respect of the domain name at issue. Alcoholics
Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case
No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic.A.S., WIPO Case
C. Registered and Used in Bad Faith
By listing the domain name for sale on an auction site with and opening bid
far in excess of the cost of registration of the domain name and by contacting
Complainant and notifying it of such auction, Respondent has effectively offered
the domain name for sale to Complainant for valuable consideration in excess
of Respondent’s documented out-of-pocket costs directly related to the domain
name. Policy, paragraph 4(b)(i); Gateway, Inc. v. David Ayers, WIPO
Case No. D2000-0106. This constitutes bad faith registration and use.
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, <cingularporn.com> be transferred to the Complainant.
M. Scott Donahey
Dated: September 8, 2003