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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deloitte Touche Tohmatsu v. Henry Chan
Case No. D2003-0584
1. The Parties
The Complainant is Deloitte Touche Tohmatsu, Zurich, Switzerland, represented
by Fross Zelnick Lehrman & Zissu, PC, United States of America.
The Respondent is Henry Chan, Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <deloitt.com> ("the domain name")
is registered with iHoldings.com Inc. d/b/a DotRegistrar.com ("the Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center")
on July 24, 2003. The Center transmitted its standard request for
registrar verification to the Registrar by email on July 28, 2003.
The Registrar confirmed by email of the same date that it was the Registrar,
that the Respondent was the current registrant, that the Uniform Domain Name
Dispute Resolution Policy (the "Policy") applied, that the domain
name would remain locked during this proceeding, and that the registration agreement
was in English and included a submission to the jurisdiction of the courts at
the Registrar’s principal office. The Registrar also provided the Respondent’s
contact details on its Whois database. Although the Registrar stated that it
had not received the Complaint, the Complaint itself confirms that it was sent
to the Registrar by courier and email. If there has been any deficiency in this
regard, the Panel waives it under its general powers pursuant to the Rules for
Uniform Domain Name Dispute Resolution Policy (the "Rules"), paragraph 10.
The Center checked the Complaint on July 31, 2003, for compliance
with the formal requirements of the Policy, the Rules, and the WIPO Supplemental
Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental
Rules"). The Center did not identify any deficiency.
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 31, 2003.
In accordance with the Rules, paragraph 5(a), the due date for Response
was August 20, 2003. The Respondent did not submit any response by
that date and the Center notified the Respondent’s default on August 21, 2003.
The Center appointed Jonathan Turner as the sole panelist in this matter on
September 1, 2003. The Panel submitted the Statement of Acceptance
and Declaration of Impartiality and Independence, as required by the Center
to ensure compliance with the Rules, paragraph 7.
Having reviewed the file, the Panel is satisfied that the Complaint complied
with applicable formal requirements (save possibly as indicated and waived above),
was duly served on the Respondent, and has been submitted to a properly constituted
Panel in accordance with the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant is an association of firms providing accountancy, auditing,
management consultancy, tax advice and other services in numerous countries
around the world under the names "Deloitte Touche Tohmatsu" and "Deloitte
& Touche." These names are frequently shortened to "Deloitte."
The Complainant’s member firms constitute one of the "big 4" international
accountancy practices, employ more than 119,000 people in over 140 countries
and attained total annual revenues of US$12,5 billion in 2002. The Complainant
has registered "DELOITTE TOUCHE TOHMATSU," "DELOITTE &
TOUCHE" and "DELOITTE" as trademarks in a number of countries.
The Complainant maintains a website at "www.deloitte.com" and many
of its member firms have websites at "www.deloitte." followed by the
relevant ccTLD (with or without a generic SLD). These include the website of
the Hong Kong firm at "www.deloitte.com.hk."
The domain name is directed to a search engine and portal at "www.dp.information.com"
operated by an entity called "domainsponsor.com." This provides links
to sponsored websites on a variety of topics, including a page entitled "Deloitt
Consulting" containing numerous sponsored links to websites of entities
not connected with the Complainant. The "www.dp.information.com" website
also causes numerous "pop-up" and "pop-under" advertisements
to be displayed when it is accessed. Domainsponsor.com offers a revenue program
which pays domain name owners "50% of all revenues generated from searches,
popunders, popups, and exit popups" in respect of users directed to its
website through the participants domain name.
The Respondent currently owns over 18,000 domain names, many of which are based
on well-known brand or trading names, and a number of which correspond to mistypings
which may be expected of such names. These names are also directed to the "dp.information.com"
website. The Respondent has been found to have registered and used domain names
in bad faith by at least three other administrative panels under the Policy.
The Respondent’s contact address given in the original registration was in Hong Kong,
but was subsequently changed to Nassau in the Bahamas.
5. Parties’ Contentions
The Complainant contends that the domain name is confusingly similar to its
mark "DELOITTE," that the Respondent has no rights or legitimate interests
in respect of the domain name, and that it was registered and is being used
in bad faith to profit from the diversion of internet users seeking information
about the Complainant and its members to "domainsponsor.com"’s website
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4 of the Policy, the Complainant must prove (A)
that the domain name is identical or confusingly similar to a trademark or service
mark in which the Complainant has rights; (B) that the Respondent has no rights
or legitimate interests in respect of the domain name; and (C) that the domain
name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar to Mark in which Complainant has Rights
The Panel is satisfied that the Complainant has registered and unregistered
rights in the marks "DELOITTE" and "DELOITTE & TOUCHE."
Although the Complainant has only registered "DELOITTE" in Spain,
Brazil and Uruguay, these registrations are relevant since the Complainant’s
member firms operate throughout the world and people in these countries may
well seek information about the Complainant’s member firms and their services
on the Internet. In any case, the Complainant’s member firms clearly have goodwill
and reputation under the name "DELOITTE" in numerous countries, including
Hong Kong, where the Respondent gave his address in the original registration
of the domain name. Although the relationship between the Complainant and its
member firms is not fully explained in the Complaint, the Panel accepts that
the Complainant has common law rights within the meaning of the first requirement
of the Policy arising from its members’ use of the name "DELOITTE"
in Hong Kong and other countries.
"DELOITTE & TOUCHE" has been registered as a trademark by the
Complainant in a wide range of countries, and the Panel further accepts that
the Complainant has common law rights by virtue of its member firms’ use of
this mark in many countries.
The Panel is also satisfied that the domain name is confusingly similar to
both "DELOITTE" and "DELOITTE & TOUCHE." "Deloitte"
is an obvious and widely used abbreviation of "Deloitte & Touche"
and a distinctive part of this mark. Confusion between the domain name and "Deloitte"
may occur, in particular, due to mistyping or misspelling.
Accordingly, the first requirement of the Policy is met.
B. Rights or Legitimate Interests of Respondent
The Panel considers that the Respondent has no rights or legitimate interests
in respect of the domain name. It appears that the only use made of the disputed
domain name has been to direct Internet users to "domainsponsor.com"’s
website at "www.dp.information.com." The use of Deloitt Consulting
on a page linked to that website does not constitute a bona fide offering
of goods or services giving rise to any right or legitimate interest.
The second requirement of the Policy is met.
C. Registered and Used in Bad Faith
The Panel is also satisfied that the domain name was registered and is being
used in bad faith. The uncontested evidence indicates that it was registered
and has been used in order to divert internet users seeking information about
the Complainant’s member firms and their services to "domainsponsor.com"’s
website at "www.dp.information.com," and to share in revenues obtained
from the diverted traffic. The Respondent is evidently carrying on an operation
of plundering the reputation of well-known marks in this way on a large scale.
This exploitation of the reputations of the Complainant’s member firms and others
is an egregious abuse of their rights.
The "Deloitt Consulting" page linked to the "dp.information.com"
website may create a likelihood of confusion as to source, sponsorship, affiliation
or association, and hence may be specifically covered by the fourth example
of bad faith identified in paragraph 4 of the Policy. However, even if
the Respondent’s conduct is not precisely covered by any of the non-exhaustive
examples of bad faith in this paragraph of the Policy, it is plainly conduct
of a kind encompassed by the concept of "bad faith" in the Policy.
The third requirement of the Policy is met.
For the above reasons, in accordance with Paragraphs 4(i) of the Policy and
15 of the Rules, the Panel decides that the domain name <deloitt.com>
should be transferred to the Complainant.
Dated: September 7, 2003