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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

DaimlerChrysler Corporation and DaimlerChrysler Services North America LLC v. LaPorte Holdings, Inc.

Case No. D2005-0070

 

1. The Parties

The Complainants are DaimlerChrysler Corporation of Auburn Hills, Michigan and DaimlerChrysler Services North America of Farmington Hills, Michigan, United States of America, represented by Judith A. Powell, Esq., Kilpatrick Stockton LLP, Atlanta, Georgia, United States of America.

The Respondent is LaPorte Holdings, Inc., attn: chrystlerfinancial, Los Angeles, California, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <chrystlerfinancial.com> is registered with Nameking.com, Inc.

 

3. Procedural History

The Complaint was submitted on January 21, 2005. The Center acknowledged receipt of the complaint on January 24, 2005. On January 24, 2005, the Center requested verification from the registrar, Nameking.com, Inc. On January 24, 2005, the registrar responded. The complaint was amended on February 3, 2005. On January 24, 2005, the Center notified Complainant of satisfaction of the formal requirements and commenced an Administrative Proceeding. On April 5, 2005, the Center notified the Respondent of default. On April 14, 2005, the Center notified the parties of the appointment of an Administrative Panel.

The Center appointed Henry H. Perritt, Jr. as the Sole Panelist on April 14, 2005.

The Panel finds that it was properly constituted. I have 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 Complainants are DaimlerChrysler Corporation (“DaimlerChrysler”), a corporation organized under the laws of the State of Delaware with its principal place of business located in Auburn Hills, Michigan, and DaimlerChrysler Services North America LLC (“DaimlerChrysler Services”), a limited liability company organized under the laws of the State of Michigan with its principal place of business located in Farmington Hills, Michigan. Complainants own or are licensed to use the following trademarks:

CHRYSLER FINANCIAL

Registration No. 2,752,985

Issued August 19, 2003

CHRYSLER

Registration No. 428,619

Issued March 25, 1947

CHRYSLER

Registration No. 570,186

Issued February 10, 1953

CHRYSLER

Registration No. 1,263,266

Issued January 3, 1984

CHRYSLER

Registration No. 1,513,942

Issued November 22, 1988

Since at least as early as 1967, the Complainants and their predecessors have adopted and continuously used the mark CHRYSLER FINANCIAL in connection with automotive financing services. Complainants’ services have been advertised and promoted through a wide range of media, including online, and are offered throughout the United States.

Since at least as early as 1924, the Complainants and their predecessors have adopted and continuously used the mark CHRYSLER in connection with: automobiles, trucks, vans, and structural parts therefor; automobile, truck, and van dealership services; and automobile, truck, and van repair and maintenance services. These products and services are advertised and promoted through a wide range of media, including online, and are sold throughout the United States.

 

5. Parties’ Contentions

Only the Complainants made a submission, which is summarized below.

A. Complainants

(i) Identical or Confusingly Similar

Complainants allege that the domain name at issue is confusingly similar to Complainants’ marks because the domain name <chrystlerfinancial.com> is a very slight misspelling, constituting a predictable typographical misspelling and/or phonetic misspelling, of the mark CHRYSLER FINANCIAL.

(ii) Rights or Legitimate Interests

Complainants allege that the Respondent has no rights or legitimate interests with respect to the domain name because neither Respondent nor any related entities have ever been commonly known by the domain name at issue, and Respondent is not making any legitimate noncommercial or fair use of the domain names at issue.

Moreover, any use of the domain name by Respondent would have taken place only after Respondent had knowledge of Complainants’ extensive use of the CHRYSLER Marks, and marketing of CHRYSLER FINANCIAL automotive financing services and CHRYSLER automobiles. Respondent’s domain name was first registered on October 28, 2002, 35 years after Complainants’ first use of the mark CHRYSLER FINANCIAL and more than 78 years after Complainants’ first use of the CHRYSLER mark.

(iii) Registered and Used in Bad Faith

Complainants allege that the domain name was registered and has been used in bad faith based on Respondent’s pattern of bad faith conduct identical to the conduct that is the subject of this complaint. In at least three previous domain dispute proceedings, Respondent has been found to have registered in bad faith domain names that are confusingly similar to the marks of others. For example, in Medco Health Solutions, Inc. v. LaPorte Holdings, Inc., WIPO Case No. D2004-0800, the Panel found Respondent’s domain name, <medcoheath.com>, confusingly similar to the <medcohealth.com> trademark registered to Medco Health Solutions, Inc., one of the leading providers of pharmacy benefit management services in the United States. Similarly, in Sociйtй des Hфtels Mйridien v. LaPorte Holdings, Inc., WIPO Case No. D2004-0849, the Panel ordered the transfer of Respondent’s domain name, <lemeriden.com>, which the Panel found confusingly similar to the registered trademark Le Meridien, a famous luxury hotel chain. The Panel also ordered the transfer of Respondent’s domain name in Krome Studios Pty, Ltd. v. LaPorte Holdings, Inc., WIPO Case No. D2004-0707, where the Panel found <tythetasmaniantiger.com> confusingly similar to the identical trademark for a popular video game.

In addition to the domain names at issue in these proceedings, Respondent has registered the domain name <mbccredit.com>, which is confusingly similar to other of Complainants’ domain names, namely, <mbcredit.com> and <mbcc.com>.

Previous panel decisions have found that registration of as few as two or three infringing domain names can constitute a “pattern” of bad faith conduct. See Nikon, Inc. v. Photocom Korea, WIPO Case No. D2000-1338, (two names constitute pattern); Bellevue Square Managers, Inc. v. Redmond Web and Branden F. Moulton, WIPO Case No. D2000-0056 (three names constitute pattern).

Complainants believe that by registering and using the <chrystlerfinancial.com> domain name to promote its website, Respondent intentionally attempted, for commercial gain, to attract Internet users to its website by creating a likelihood of confusion with the Complainants’ famous marks as to the source, sponsorship, affiliation or endorsement of the website or of their products and services.

While not active as of the date of this Complaint, Respondent’s website has at least periodically operated over a period of two years by connecting consumers who keyed in <chrystlerfinancial.com> to the Respondent’s website. When the website was active, a customer or potential customer of Complainants who mistakenly adds a “t” to the CHRYSLER mark would be connected to the Respondent’s website. Consequently, the Respondent relies on consumer mistakes and confusion with Complainants’ CHRYSLER Marks and with the Complainants’ <chryslerfinancial.com> domain name to draw persons to its website.

The structure of Respondent’s website indicates that <chrystlerfinancial.com> is a “click through” site, from which Respondent receives revenues from third parties whose websites are accessed via Respondent’s website. Respondent’s website displays a host of links that provide a variety of options to web-users in the form of bogus search results. In some cases, Respondent’s website provides links to companies that directly compete with Complainants in the sale of automotive financial services.

Respondent’s website also launches a variety of “pop-up” advertisements, which Complainants believe provide Respondent a stream of “click through” revenue based on the number of “hits” received.

Numerous UDRP Decisions hold that “using the disputed domain name to redirect Internet users to websites that host links to external websites, including websites of Complainants’ competitors”, evidences bad faith. Royal Bank of Canada v. Henry Chan, WIPO Case No. D2003-0031. In short, the use of Complainants’ marks simply for the purpose of driving traffic to Respondent’s website and to other websites is not a bona fide attempt to offer goods and services to the public.

Such conduct constitutes evidence of bad faith under paragraph 4(b)(iv) of the ICANN Policy.

4(c)(ii) Neither Respondent nor any related entities have ever been commonly known by the domain name at issue.

4(c)(iii) Respondent is not making any legitimate noncommercial or fair use of the domain names at issue.

Remedies Requested

Complainants request that the Administrative Panel issue a decision that the <chrystlerfinancial.com> domain name be transferred to the Complainants.

B. Respondent

The Respondent did not reply to the Complainants’ contentions.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainants must prove that:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights;

(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Under the Policy and Rules, when a Respondent defaults, the Panel may choose to accept the Complainants’ contentions as true, but must determine whether those facts constitute a violation of the Policy, sufficient to order cancellation or transfer of the disputed domain name. Paragraph 5(e) of the Rules provides that if a Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based on the Complaint. Under paragraph 14(b) of the Rules, when a party defaults in complying with any of the requirements of the Rules, in the absence of exceptional circumstances, the Panel is entitled to “draw such inferences therefrom as it considers appropriate”. No exceptional circumstances have been brought to the Panel’s attention. Accordingly, the panel makes these findings on the basis of the material contained in the Complaint.

A. Identical or Confusingly Similar to a Trademark or Service Mark in which the Complainants have Rights

Paragraph 4(a)(i) of the Policy requires a “Trademark or Service Mark” in which the Complainants have rights. The uncontested submissions show that the Complainants have trademark rights in “CHRYSLER” and “CHRYSLER FINANCIAL”.

The Panel follows abundant panel precedent and accepted principles of trademark law in deciding that <chrystlerfinancial.com> is identical or confusingly similar to the trademarks “CHRYSLER” and “CHRYSLER FINANCIAL”. The only differences between the <chrystlerfinancial.com> domain name and the “CHRYSLER” and “CHRYSLER FINANCIAL” marks is the addition of the top-level domain “.com”, and the insertion of a “t”. It is well established that the addition of a single letter of the alphabet, a minor misspelling or the addition of a “.com” to a famous trademark does not avoid confusion.

B. Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in the domain name. The Respondent does not assert any. On the contrary, and based on the case file, it seems clear that the Complainants have asserted and proved that the Respondent has no such rights or legitimate interests.

C. Registered and Used in Bad Faith

Screen shots of Respondent’s web pages submitted with the Complaint show that use of the domain name redirects a user to websites that offer advertisements for a variety of products or to websites that offer information about automobiles that compete with Complaints’ products.

Respondent registered a domain name nearly identical to Complainants’ trademark. That and the nature of the website Respondent maintains makes it clear that his purpose is to divert traffic intended for Complainants’ site to his own, in the hope that Respondent will earn ad revenue from the diverted traffic.

This qualifies as bad faith under paragraph 4(b)(iv) in that the Respondent’s use of the domain name attempts to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion with Complainants’ mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website.

Moreover, Respondent’s default in this proceeding reinforces an inference of bad faith. If it had arguments that it acquired the domain name in good faith, and had good faith bases for using the domain name, it should have asserted them.

 

7. Decision

For all the foregoing reasons, the Complaint is accepted, and I find that the domain name should be transferred to the Complainants.


Henry H. Perritt, Jr.
Sole Panelist

Dated: April 13, 2005

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-0070.html

 

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