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Arbitration and Mediation Center
Fugro N.V. v. Elmer Jacobs
Case No. D2003-0863
1. The Parties
The Complainant is Fugro N.V., Leidschendam, Netherlands, represented by De Brauw Blackstone Westbroek N.V., Netherlands.
The Respondent is Elmer Jacobs, Oudeschans 34, 1011 LC Amsterdam, Netherlands, of Netherlands.
2. The Domain Name and Registrar
The disputed domain name <sialgeo.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 30, 2003. On October 30, 2003, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On October 30, 2003, Go Daddy Software 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 6, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was November 26, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 27, 2003.
The Center appointed Charles Gielen as the sole panelist in this matter on December 5, 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 Complainant is the proprietor of the trademark for the word SIALGEO. This trademark has been registered for the Benelux countries since September 26, 2003, with the Benelux Trademark office (Benelux Merken Bureau) under number 735156. The trademark is registered in classes 09, 35, 37, 39 and 42 for, in short, scientific, nautical, surveying and related goods and services.
The Respondent registered the domain name <sialgeo.com> on July 1, 2003.
5. Parties’ Contentions
The Complainant collects, processes and interprets data related to the earth’s surface and soil composition and provides advice based on the results, generally for purposes related to the oil and gas industry or the construction of buildings or civil engineering structures. The Complainant is a well-known company with over 250 offices, about 7.000 employees and has a permanent presence in more than 55 countries. It has been listed on Euronext N.V. in Amsterdam and is included in the Amsterdam Midkap index.
The Complainant was founded in 1962. In 2001, the Complainant acquired Sial Geosciences, Inc., a Canadian based engineering firm specialized in geosciences. The activities of this company formed a supplement to the Complainant’s geotechnical and survey divisions.
Sial Geosciences actively used the domain name <sialgeo.com> until its incorporation in the Complainant. During the course of 2003, the Complainant accidentally let the domain name sialgeo.com lapse. The Complainant intends to use the <sialgeo.com> domain name to link former Sial Geosciences customers and other interested parties to its main domain name <fugro.com>. After all, Sial Geosciences had established a good reputation in the field of geosciences and built up a large clientele over its 25 years of business under the name Sial Geosciences, or its abbreviation "Sial Geo".
The Complainant argues that the domain name is identical to its trademark, that Respondent has no rights or legitimate interests in the domain name. Finally the Complainant argues that the domain name is registered and is being used in bad faith. In support of this the Complainant states the following.
Under the domain name <sialgeo.com> the Respondent operates a web site. The homepage of this site is a next to identical copy of the original home page of Sial Geosciences, formerly displayed on <sialgeo.com>. The Respondent’s home page even displays the contact details of Sial Geosciences, currently Fugro Airborne Services Quebec, Ltd. Moreover, the Respondent copied the original links under Company Profile, Our Services and Contact Us with all underlying company information and images of Sial Geosciences. The Complainant is the owner of all rights connected to these web pages, in particular of the copyrights in the home page, the logo of Sial Geosciences and the images.
On the home page at "www.sialgeo.com" the Respondent has added to the material of Sial Geosciences three links, being: Blog5 Games, Older and Anal sex photos. These links lead to the following information. Blog 5 Games links to the web site "www.blog5.com", which posts information, cheats and hints on computer games. The site also lists links to other games sites, such as "Games News". The domain name <blog5.com> is also registered by the Respondent. Older links to a home page with the heading "Older women nude". The text on this and the following pages is incoherent, but unmistakably pornographic of nature. For example: "Older women nude is handjob sucks for tip. Mean extreme have to often at movies erotic yes of soft in deepthroat to cheerleaders eighteen wild image lesbo lump." The text is illustrated by pornographic images for "M.I.L.F. search.com" with legends such as: "Moms I'd like to fuck! Watch these moms get what they need! Click here!", "Watch the hottest mommas fuck". The subsequent web pages display numerous links, such as: "Amateur older women", "Asian older women", "Dominant older women", which all lead to the web site "M.I.L.F.search.com" (on "www.milfsearch.com") or other pornographic web sites. On these sites, to which full access is available to subscribing members only, hardcore pornographic images and movies can be downloaded or videos can be ordered, against payment. Some of these sites are registered by the Respondent.
Anal sex photos links to "www.analpassions.com" and "www.anal-sex-photos.org", which are also pornographic web sites that need subscription. The domain name <anal-sex-photos.org> is registered by the Respondent.
According to the Complainant this illustrates that the Respondent uses the
domain name <sialgeo.com> to link to game sites and sites with pornographic
material (or at least with so called 'adult' content) for commercial purposes.
This means that the Respondent is not making a legitimate non-commercial or
fair use of the domain name <sialgeo.com>. By using the domain name <sialgeo.com>
for games and pornographic web sites, the Respondent is intentionally attempting
to attract Internet users to his web sites or other on-line locations, for his
financial gain (See Sodexho Alliance v. Entredomains, Inc., WIPO
Case No. D2002-1001; "As other panels have concluded before, there
is a well-known practice by which website owners can gain commercially by providing
links to pornographic websites even though the owner does not actually operate
the pornographic website"). The Respondent’s bad faith is even more
emphasized by the finding, that upon exiting of the Older-linked through web
sites, more windows pop-up (e.g. "www.old.mature.net" and "www.adultrevenueservice.com"),
which makes exiting the Internet more difficult (See Electronic Arts inc.
v. John Zuccarini, WIPO Case No. D2003-0141;
"These findings [the popping-up of the windows when exiting] also support
the bad faith use by the Respondent").
The Respondent misleadingly diverts Internet users. Customers of former Sial Geosciences in search of the website of the Complainant will reach the Respondent’s games site "www.blog5.com" or the pornographic sites "www.milfsearch.com", "www.analpassions.com", "www.anal-sex-photos.org" or any other pay-web site, instead of reaching the web site of the Complainant. That means a reduced number of hits for the Complainant. Moreover, people will blame the Complainant for being linked to a games or pornographic site instead of to the site of the Complainant.
By using the domain name <sialgeo.com> the Respondent creates a likelihood of confusion with the trademark of the Complainant as to the source, sponsorship, affiliation, or endorsement of the web site. The Respondent is intentionally endeavoring to attract for commercial gain Internet users to his games and to pornographic web sites by creating this likelihood of confusion. This can, additionally, be shown in the fact that the Respondent uses the copyright protected content of the former web site of Sial Geosciences, with the Complainant’s contact details and company information. the Respondent’s goal is thus to attract and divert clients of the Complainant. The public will be misled as to the origin and owner of the domain name <sialgeo.com> . Customers of former Sial Geosciences or people otherwise encountering the domain name <sialgeo.com>, will believe it emanates from, is endorsed, licensed or approved by or is otherwise associated with the Complainant.
The Complainant is known as a solid and respectable company. The Respondent’s use of the domain name <sialgeo.com> (and of the company information of the Complainant) dilutes and tarnishes the trademark SIALGEO. The use of this domain name will cause harm and detriment to the Complainant's reputation and trademark.
The Complainant draws the attention to the established case law of the UDRP that the posting of pornographic or adult contents on a website that corresponds with a third party’s trademark constitutes bad faith in the registration and/or use of the domain names. See e.g.
Coral Trademarks, Ltd. v. Eastern Net, Inc., WIPO
Case No. D2000-1295 ("The posting of pornographic contents on a web
site under a domain name that corresponds to a third party’s mark is a bad faith
use of a domain name"); America Online, Inc. v. Viper, WIPO
Case No. D2000-1198 ("The use of AOL as part of a domain name offering
pornographic products and services certainly "tarnishes" Complainant’s
existing marks, which is also evidence of bad faith"); Valor Econômico
S.A. v. Daniel Allende, WIPO Case No.
No. D2001-0523 ("Complainant has proved that Respondent linked the
<valoreconomico.net> web page to adult content or pornographic sites,
(…). This is a typical bad faith use of the domain name."); ABB Asea
Brown Boveri Ltd. v. Quicknet, WIPO Case No. D2003-0215
("The use of ABB as part of a domain name offering pornographic material
certainly tarnishes the Complainant's existing marks, which is also evidence
of bad faith."); Six Continents Hotels, Inc. v. Seweryn Nowak WIPO
Case No. D2003-0022 ("Preliminary, it is commonly understood, under
WIPO case law, that whatever the motivation of Respondent, the diversion of
the domain names to a pornographic site is itself certainly consistent with
the finding that the Domain Name was registered and is being used in bad faith.").
On October 9, 2003, the Complainant had a number of searches conducted on the address details of the Respondent as listed in the WHOIS database. The Complainant discovered that the postal code does not match the address entered. Furthermore, the telephone and fax numbers are invalid; no telephone or fax connection is listed with KPN Telecom for this address. The Complainant submits that the apparent invalidity of Respondent’s contact details is further evidence of Respondent’s bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel decides that the domain name is identical to the trademark SIALGEO.
B. Rights or Legitimate Interests
Although the Complainant did not provide any evidence of the lack of rights or legitimate interests on the side of the Respondent, the Panel concludes that the second criterion is fulfilled. The following circumstances are relevant in this respect:
a) The Respondent did not file a response, thus failing to demonstrate that it had any rights and legitimate interests under paragraph 4(c) of the Policy;
b) The Respondent provided the Registrar with non-existing or false contact details, which is not the behaviour of someone who has rights or legitimate interests in the domain name;
c) The Respondent used webpages that are copied from the former webpages of the Complainant from which it can be derived that there has not been any prior bona fide use of the domain name.
C. Registered and Used in Bad Faith
The Panel is convinced that the domain name was registered and is used in bad faith. Not only did the Respondent use a copy of the Complainant’s former website even apparently using the Complainant’s details, but it also directly or indirectly links the visitors to pornographic websites. In doing so there is a likelihood that the trademark of the Complainant is prejudiced thereby disrupting the business of the Complainant. Such behaviour is a typical form of bad faith. The Respondent is also clearly attempting to attract Internet users to its commercial pornographic web sites, by confusing them as to the affiliation of the web sites (paragraph 4(b)(iv) of the Policy).
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, <sialgeo.com>, be transferred to the Complainant.
Dated: December 19, 2003