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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Yamaha Corporation v. Privat
Case No. D2003-0522
1. The Parties
The Complainant is Yamaha Corporation, JP - Shizuoka, of Japan, represented by Gevers & Partners S.A. of Belgium.
The Respondent is Privat, C/O Desmedt Jean Marie, Brussels, of Belgium.
2. The Domain Name and Registrar
The disputed domain name <yamahaeurope.com> is registered with Dotster, Inc., P. O. Box 821066, Vancouver, Canada.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 1, 2003. On July 1, 2003, the Center transmitted by email to Dotster Inc. a request for registrar verification in connection with the domain name at issue. On July 2, 2003, Dotster, Inc. 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 July 4, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 24, 2003. The Response was filed with the Center on July 21, 2003.
The Center appointed Gunnar Karnell as the sole panelist in this matter on July 30, 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.
The language of the administrative proceeding is English. However, the Respondent, in its Response as filed in English language, has indicated that its English text "is only a copy and a free translation. We consider only the original Dutch text as a base". The Administrative Panel will disregard this contention, commenting that the occasional language deficiencies in the English text of the Response do not offer any possibilities for misunderstanding.
4. Factual Background
The Complainant and its subsidiary Yamaha Motor Europe are the proprietors of a great number of registered trademarks (International, Community and Benelux) that consist of or feature the word Yamaha, among those the Benelux registered YAMAHA word marks No. 0045924 (July 28, 1971, renewed) and No. 0047919 (August 6, 1971; renewed).
The Respondent’s domain name <yamahaeurope.com> was registered October 30, 2002.
5. Parties’ Contentions
A. Complainant (summary)
Founded in 1897, the Complainant is today a leader internationally in businesses ranging from musical instruments and audio & video products to information technology products, news media services, home furnishings, auto components, speciality metals, music education and resort facilities.
a) The domain name <yamahaeurope.com> is confusingly similar to the YAMAHA trademark (and other trademarks owned by the Complainant featuring the word YAMAHA), differing only by the suffix "europe" and the top level domain "com".
Geographical additions do not alter the underlying meaning of a domain name so as to avoid confusing similarity. The geographical indication and the generic and functional top level domain "com" do not change the essential meaning and expression of the term Yamaha and its identifying function. The additions do not clearly distinguish between the respective designations in meaning, appearance, sound or general impression. They aggravate confusion by furthering the suggestion of a variation for an extension of the Complainant’s existing companies, divisions, brands or products as well as the erroneous assumption that there is a common endorser, source or affiliation between the respective services or products. <yamahaeurope.com> would easily be taken to indicate a sister website to the Complainant’s "www.yamaha.com" or "www.yamaha-europe.com", official website of the European headquarters of the Complainant.
b) The Respondent has no rights or legitimate interests in respect of the domain name, having no trademark or other intellectual property rights to it or any substantially similar designation anywhere; nor does it operate any business under any mark incorporating the term YAMAHA or YAMAHAEUROPE or the like. The Respondent is not known under any such token and it has made no lawful use of its domain name. Its sole interest in the latter term is in the registration and offer for sale to the Complainant of the domain name. No lawful use has been made of the domain name. It has been used, first only on a "www.yamahaeurope.com" home page presenting a message "this domain is for sale" and a popup window automatically opening to show the start page of Korg Corporation. Later were added photographs of the Presidents of Yamaha Music Central Europe and Yamaha Music Holdings Corporation, Mr. Kato and Mr. Takahashi, inviting, when clicked on, to hyperlinks directly to Korg Corporation and Roland Corporation, the Complainant’s main competitors. Furthermore, there is a banner on the home page "YAMAHA EUROPE = 4 sale", possibly making people wrongly believe that the Complainant encounters financial difficulties.
c) The domain name was registered and is being used in bad faith. Complainant’s trademark YAMAHA is known world wide, inter alia by numerous websites, including "www.yamaha.com" and "www.yamaha-europe.com". The company name and the trademark YAMAHA are well known in the Benelux territory where the Respondent is located. The personal representative as administrative and technical contact for Softly Notes vzw, the association replying to communications in this case, Mr. Jean-Marie Desmedt, is a musician, and as such perfectly aware of YAMAHA products, trademarks and company name when registering the domain name. In a letter, presented as evidence in this case, Mr. Desmedt stated that he was prepared to sell the disputed domain name for valuable consideration.
The use of the domain name mentioned here above under b) tarnishes the repute of the YAMAHA Presidents and of the YAMAHA Corporation. The fact that the official website of Yamaha Corporation is "www.yamaha-europe.com" reinforces the prejudice created by the domain name in issue. The Respondent has tried to disrupt the Complainant’s business. The domain name has never been developed by the Respondent since its registration. It just leads to a home page with banners "YamahaEurope This domain is for sale" or "YAMAHAEUROPE = 4 sale". This holding of the domain name constitutes together with what has here earlier been presented evidence of use in bad faith.
B. Respondent (summary)
The Respondent maintains that "everybody is free to buy a domain name. Even if this is a brand name." Its business activities exclusively concern web design and sale of domain names. There is never any competition with Yamaha Corporation. There have been and are no bad intentions behind the site which is "clean and without links". From the beginning the domain name was offered for sale and Yamaha Corporation may still buy it. The Respondent finds "no prove [i. e. proof] that Yamahaeurope a registered brand name is".
in its Response,
6. Discussion and Findings
A. Identical or Confusingly Similar
In respect of the similarity issue, the Panel will disregard the Complainant’s references to its websites "www.yamaha.com" and "www.yamaha-europe.com" as inferred in support of its arguments. We are here only dealing with conflicts regarding similarities between on the one side a domain name and on the other "a trademark or service mark in which the Complainant has rights" (the Policy 4. (a)(i)). This, however, does not mean that the similarity issue shall be regarded as simply a matter of comparative linguistics. Similarity refers also to how in a case at hand the public may recognise what connects trade and service mark characteristics on the one hand and domain name characteristics on the other as connecting elements between Complainant and Respondent. This taken into account, the Panel finds that the domain name in issue is confusingly similar to the Complainant’s trademark YAMAHA.
B. Rights or Legitimate Interests
The Respondent, having used the opportunity to reply to the Complainant’s allegations, has not given any indication of rights or legitimate interests in respect of the domain name worthy of being taken into account in defence of its conduct, neither when registering the domain name nor thereafter. The Panel finds that the Complainant, supported by what has been replied by the Respondent, has convincingly shown that the Respondent has no rights nor any legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Respondent’s business is, as it states it itself, to "do business with web design and buy or sell domain names". Already the offers for sale after registration of the domain name is evidence of its continued use as part of Respondent’s engagement in such business. There can be no doubt about the Respondent’s knowledge of the well known YAMAHA mark. Being part of Respondent’s business, it is evident that any sale of the domain name to the Complainant or any other party would be for valuable consideration in excess of any documented out-of-pocket costs directly related to the domain name (cf. the Policy 4(b)(i)). Obviously, the registration was made in order to prevent the Complainant from reflecting its mark YAMAHA in the corresponding domain name, without preceding purchase of the domain name from the Respondent; the name being "corresponding" in the meaning of the Policy 4(b)(ii) for reasons given here above under 6 (a). The use of the domain name in directing visitors to the Respondent’s site by means of links as described by the Complainant to its competitors tarnishes the mark, as well as does the manner in which the open offer for sale of the domain name appears on the Respondent’s site. The Panel finds that the domain name in issue has been registered and is used in bad faith.
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 <yamaha-europe.com> be transferred to the Complainant .
Date: August 4, 2003