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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

BT Financial Group Pty Limited v. Basketball Times Pty Ltd

Case No. DAU2004-0001

 

1. The Parties

The Complainant is BT Financial Group Pty Limited, Sydney, New South Wales of Australia, represented by Mallesons Stephen Jaques, Australia.

The Respondent is Basketball Times Pty Ltd., Perth, Western Australia, of Australia.

 

2. The Domain Name and Registrar

The disputed domain name <bt.com.au> is registered with TPP Internet.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 5, 2004. On April 5, 2004, the Center transmitted by email to TPP Internet a request for registrar verification in connection with the domain name at issue. On April 24, 2004, TPP Internet 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 .au Dispute Resolution Policy (the "Policy"), the Rules for .au Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for .au 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 April 26, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was May 16, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 18, 2004.

The Center appointed John Terry as the sole panelist in this matter on May 24, 2004. 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 following paragraphs 12-25 from the Complaint set out the Background.

"12. The Complainant is a well-known financial services company in Australia, and is part of the Westpac Banking Corporation group.

13. The Complainant offers a wide range of services in Australia to help people achieve their financial goals, including superannuation, retirement solutions, managed funds, investment platforms and margin lending. The Complainant also provides a full-service superannuation solution to many of Australia's leading businesses.

14. The Complainant maintains five offices in Australia and employs approximately 1,700 employees.

15. The Complainant has approximately 700,000 customers and over $41 billion under management.

16. The Complainant is the owner of a number of registered Australian trade marks that include or comprise "BT".

17. The Complainant has a popular website located at "www.btonline.com.au".

18. The Respondent is an Australian corporation that does not appear to be trading.

19. The sole director of the Respondent, Mr. Bradley Stedman Norrish, has previously been found to be engaging in misleading and deceptive conduct in relation to the marketing of domain name services by the Federal Court of Australia. Federal Court proceedings were instituted by the Australian Competition and Consumer Commission in September 2002, against Internet Registrations Australia Pty Limited, a company of which Mr. Norrish was a director. (That company has now been de-registered.) As a result of that prosecution, Internet Registrations Australia Pty Limited gave court enforceable undertakings to provide refunds to recipients of its misleading "renewal" notices for domain name registrations. (See Annexure M). The Federal Court also made orders against the company for making misleading representations regarding registration and renewal of domain names.

20. The disputed domain name was registered on January 30, 2002, supposedly by the Respondent. However, the Respondent did not exist at that time and was not incorporated until January 28, 2003.

21. On or around January 14, 2003, a financial planner, who was searching for the Complainant's website, mistakenly entered the URL for the disputed domain name. He was automatically re-directed to a porn site, and contacted the Complainant.

22. On March 3, 2003, the Complainant wrote to the Respondent and requested that the Respondent stop using the Complainant's "BT" trademark in the disputed domain name and to transfer the disputed domain name to the Complainant. A copy of the letter appears in Annexure C.

23. The Respondent did not reply to the Complainant's letter.

24. There has been no further communication between the Complainant and the Respondent.

25. The Respondent has no authority or permission from the Complainant to use or to register the disputed domain name."

 

5. Parties' Contentions

A. Complainant

The Complainant relies on the factual background set out above, provides details of its registered Australian trade marks (including "BT" registration no. 666,117 in classes 9, 16, 35 and 36) and sets out well-supported reasoning.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The present domain name <bt.com.au> is found to be identical to the Complainant's trade mark "BT" no. 666,117. It is well established by many prior UDRP decisions that the addition of a general or country code top-level domain (gTLD or ccTLD) such as ".com.au" is without legal significance; see for example:

Bayerische Motoren Werke A G v bmwcar. com, WIPO Case No. D2002-0615; Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd, WIPO Case No. D2000-0802; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Accordingly, the Panel finds that Paragraph 4(a)(i) of the Policy is clearly satisfied.

B. Rights or Legitimate Interests

The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence that the Respondent has used, made preparations to use, or has any intention of using the disputed domain name in connection with bona fide offering of goods or services.

There is no evidence that the Respondent is commonly known by "BT" or "bt.com.au". The Panelist finds it inconceivable that the Respondent did not know of the Complainant's widely renowned reputation and registered the disputed domain name because of the fame of the Complainant. Had the Respondent used the present domain name such use could not have been bona fide.

Furthermore, at the time of registration of the disputed domain name, the Respondent did not satisfy the relevant eligibility criteria, for the reason that the Respondent did not exist at that time.

An application to register the disputed domain name was made with "Basketball Times Pty Limited" recorded as the registrant. At the time of registration of the disputed domain name on January 30, 2002, "Basketball Times Pty Limited" (the Respondent) did not exist. Only when the registrar became aware that "Basketball Times Pty Limited" did not exist did Mr. Bradley Norrish proceed to incorporate an entity with the name "Basketball Times Pty Limited". "Basketball Times Pty Limited" was incorporated on January 28, 2003, one year after the disputed domain name was registered.

The panelist finds Paragraph 4(a)(ii) of the Policy is clearly satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a non-exhaustive list of factors which indicate registration and use in bad faith. The Panelist finds that the Respondent's conduct constituted both registration and use in bad faith in view of paragraphs 4(b)(ii), 4(b)(iii) and 4(b)(iv) of the Policy and for other reasons set out below.

Providing false or misleading details when registering a domain name, and registering a domain name in the name of an entity that does not exist, is registration of the domain name in bad faith. There are many UDRP decisions reaching this conclusion, including: Home Director, Inc. v. HomeDirector, WIPO Case No. D2000-0111; Telstra Corp. v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Novus Credit Services v. Personal, WIPO Case No. D2000-1158; National Hockey League And Lemieux Group Lp v. Domain For Sale, WIPO Case No. D2001-1185; Francesco Totti v. Jello Master, WIPO Case No. D2002-0134.

The Panelist accepts the uncontroverted elements of the Complainant that the disputed domain name resolved to a pornographic site, "www.pornharvester.com". Use of the Complainant's mark to route users to a pornographic website was found to constitute evidence of bad faith in Ingersoll-Rand Co. v. Frank Gully d/b/a Advcomren, WIPO Case No. D2000-0021; Laure Pester (Lorie) and Sony Music Entertainment France SA v. Movie Name WIPO Decision No. D2003-0312; and in National Hockey League And Lemieux Group Lp v. Domain For Sale, WIPO Case No. D2001-1185 and in the cases cited therein. This is also bad faith under the Policy, paragraph 4(b)(iv).

The Panelist finds that the Respondent registered the disputed domain name to prevent the Complainant from reflecting its trade mark in a corresponding domain name, and that the Respondent registered the disputed domain name primarily for disrupting the business of the Complainant.

Accordingly, the Panelist finds that Paragraph 4(a)(iii) of the Policy is clearly satisfied.

 

7. Decision

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 <bt.com.au> be transferred to the Complainant.

 


 

John Terry
Sole Panelist

Dated: June 1, 2004

 

Источник информации: https://internet-law.ru/intlaw/udrp/2004/dau2004-0001.html

 

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