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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

General Electric Company v. LaPorte Holdings, Inc.

Case No. D2005-0076

 

1. The Parties

The Complainant is General Electric Company of Fairfield, Connecticut, United States of America, represented by Fross Zelnick Lehrman & Zissu, PC, United States of America.

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

 

2. The Domain Names and Registrar

The disputed domain names are <gebenefit.com> and <gebenfits.com> (the “disputed domain names” or just “Domain Names”), both registered with NameKing.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2005. On January 25, 2005, the Center transmitted by email to NameKing.com a request for registrar verification in connection with the domain names at issue. On February 2, 2005, NameKing.com transmitted by email to the Center its verification response confirming, for both domain names, that the Respondent is listed as the registrant and that the Policy is in effect in respect of the domain names, and providing the contact details for the administrative, billing, and technical contacts for both.

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 February 16, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was March 8, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 9, 2005. The Center appointed Seth M. Reiss as the sole panelist in this matter on March 17, 2005.

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 Panel is required to forward its decision to the Center, in accordance with paragraph 15 of the Rules, by March 31, 2005.

The Panel has examined the communications of the Center and the Complainant, and the Complaint. The Panel confirms that each complies with the formal requirements of the Policy, the Rules and the Center’s Supplemental Rules, and specifically, that the Center complied with paragraph 2(a) of the Rules in communicating the Complaint and applicable response deadline to the Respondent, and with paragraph 2(b) of the Rules in notifying the Respondent of its default and appointment of the Panel. The Panel further confirms that the Administrative Panel was properly constituted.

The language of the proceeding is English.

 

4. Factual Background

The Complainant is a very well established and very well known company engaged in the manufacture, advertising, distribution and sale of a wide variety of products and services to the general public and to diverse businesses and industries throughout the United States and many other countries. General Electric Company v. CSMRW and Colm Sheehy a.k.a. CSMRW, WIPO Case No. D2001-0967 (October 26, 2001). Complainant claims ownership of the name and mark GE, and of numerous trademarks and domain names incorporating GE. Complainant has used the GE mark since as early as 1899, and claims to have sold billions of dollars worth of products and services under the GE marks. Because of this, and that it has spent billions of dollars to advertise its GE mark, Complainant contends the GE marks have become exceptionally famous. Reputable sources have estimated the GE mark to be worth $42.34 billion, making it the 4th most valuable brand in the world.

Complainant holds multiple registrations for the GE mark, issued by the United States Patent and Trademark Office, and by trademark registrars in other countries, for the GE mark, alone, stylized and in combination with other words and phrases. Complainant’s GE marks have been the subject of at least three previous UDRP decisions: General Electric Company v. Momm Amed la, WIPO Case No. D2000-1727 (March 21, 2001); General Electric Company v. Dr. Elliot Fishman, WIPO Case No. D2001-0934 (September 27, 2001); and General Electric Company v. CSMRW and Colm Sheehy a.k.a. CSMRW, WIPO Case No. D2001-0967 (October 26, 2001). The panels in each of these cases recognized Complainant’s ownership of the GE marks and each case resulted in the transfer, to Complainant, of the disputed domain name.

Among the Complainant’s domain names are <ge.com>, registered on August 5, 1986, and <gebenefits.com>, registered June 23, 2000.1 Complainant’s <gebenefits.com> domain name resolves into a website maintained by Complainant to deliver information concerning Complainant’s employee benefit plans. Complainant claims this employee benefits plan website receives over five million visits a year.

As no response was filed in this case, the only facts concerning Respondent are those provided by Complainant in its Complaint and the Annexes thereto, and facts that may be culled from previous UDRP decisions concerning Respondent.

Respondent registered the <gebenefit.com> domain name in December 2002, and the <gebenfits.com> domain name in December 2003. Complainant claims there is no relationship between it and the Respondent and that it never gave Respondent any right or permission to use its GE mark or to register the disputed domain names. Annexed to the Complaint is evidence that the disputed domain names recently pointed to search engines and linking portals, and triggered a variety of “popunder” advertising. 2 These search engine and portal sites offered links to online gambling, dating and diet websites. Some linked to websites that displayed links labeled “General Electric” and “GE” which, if activated, would link the user to a variety of Internet retailers unrelated to Complainant but which, in some cases, offered goods competitive to those offered by Complainant. Complainant asserts, and offers evidence, that the Domain Names provide Respondent with financial benefit in the form of click-through revenue from the web traffic generated through the Domain Names and from the “popunder” advertising that appears in connection with the use of the Domain Names.

Complainant additionally provides authority that the Respondent is an alter ego of Henry Chan, an individual with a well established and well documented history of registering and using domain names in violation of the Policy. Mr. Chan has been found to have registered, in his own name and in the name of entities including LaPorte Holdings, domain names containing the trademarks and well-known names of third parties, and to have used these domain names to direct web traffic to websites for financial gain. Complainant cites no less than 16 UDRP decisions in which Mr. Chan was determined to have registered and used domain names in bad faith. See, e.g., Krome Studios Pty, Ltd. v. LaPorte Holdings, Inc., WIPO Case No. D2004-0707 (December 12, 1004) (finding that Horoshiy, Inc. and LaPorte Holdings were both alter egos of Henry Chan).

 

5. Parties’ Contentions

A. Complainant

Complainant asserts that it holds rights in the GE name and mark and in marks and domain names that incorporate its GE name and mark, as a result of long term and continuous use of the GE name and mark, the extensive promotion thereof, and its multiple trademark and domain name registrations. Complainant maintains that the Domain Names are nearly identical or confusingly similar to Complainants GE marks, and that the addition of the term “benefit” or misspelled term “benfit” to the GE mark is insufficient to prevent consumer confusion.

Complainant contends that Respondent has no license, right or permission to use Complainant’s GE mark, is not known by the Domain Names, and cannot otherwise establish any right or legitimate interest in respect to the disputed domain names. Complainant maintains that Respondent instead registered and is using the Domain Names in bad faith, solely in order to divert web traffic for financial gain.

Complainant concludes by requesting, in accordance with paragraph 4(i) of the Policy, that the Panel issue a decision that the domain names <gebenefit.com> and <gebenfits.com> be transferred to Complainant.

B. Respondent

As noted above, the Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Pursuant to paragraph 4(a) of the Policy, a complainant has the burden of establishing the existence of the following three elements:

(i) The disputed domain names are identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) The respondent has no rights or legitimate interest in respect of the disputed domain names; and

(iii) The disputed domain names were registered and are being used in bad faith.

A. Identical or Confusingly Similar: Policy 4(a)(i)

It is beyond discussion that Complainant holds rights in the GE name and marks, that the GE marks are very well established, very well known and famous, and “represent[] goodwill of extraordinary value.” General Electric Company v. Momm Amed la, WIPO Case No. D2000-1727 (March 21, 2001).

It is also well established that the addition of a generic or descriptive term to a famous mark fails to distinguish the resulting domain name from the mark or dispel the resulting confusion. Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Kil Inja, WIPO Case No. D2000-1409 (December 9, 2000); General Electric Company v. Momm Amed la, supra. Neither does “typosquatting”, i.e., the deliberate misspelling of an established or well known mark. Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, WIPO Case No. 2000-0578 (August 28, 2000). That Complainant offers employee benefit plans that affect a great many people, and that Complainant has maintained since 2001 the domain name <gebenefits.com> to point to a website that supplies information concerning its employee benefit plans, only reinforces the likelihood that persons using the Internet to locate information about Complainant’s benefit plans will be mislead, confused and deceived by the Respondent’s <gebenefit.com> and <gebenfits.com> domain names.

The Panel therefore finds that the disputed domain names are confusingly similar to the GE marks in which Complainant holds rights and that Complainant has established element (i) of the Policy’s paragraph 4(a).

B. Rights or Legitimate Interests: Policy 4(a)(ii)

Once a complainant establishes that a respondent’s domain name is identical or confusingly similar to complainant’s mark, and that complainant has not authorized respondent to use the mark, the burden shifts to respondent to establish some right or legitimate interest in respect of the domain name. Sony Kabushiki Kaisha v. Sony.net, WIPO Case No. D2000-1074 (November 28, 2000).

There is no evidence in the record that Respondent is in any way associated with Complainant, that Respondent is now or was ever known by the Domain Names, or that Respondent has other authority or permission to use Complainant’s GE name and mark in Respondent’s domain names. By not submitting a response, Respondent has failed to invoke any other circumstance that might demonstrate, pursuant to paragraph 4(c) of the Policy, that it holds some right or legitimate interest in the disputed domain names. Ahead Software AG v. Leduc Jean, WIPO Case No. D2004-0323 (June 29, 2004).

The rights Complainant claims in the GE name and mark predates, by more than 100 years, Respondent’s registration and use of the disputed domain names. This, coupled with the reality that the GE mark is very well known and universally recognized, renders it near impossible that Respondent could put forth any circumstances that might establish a right or legitimate interest in Respondent in respect of the Domain Names. Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 (May 1, 2000); General Electric Company v. Momm Amed la, supra.

As the record is devoid of plausible evidence demonstrating a right or legitimate interest of Respondent in respect of the disputed domain names, the Panel finds that element (ii) of the Policy’s paragraph 4(a) has also been established.

C. Registered and Used in Bad Faith: Policy 4(a)(iii)

Paragraph 4(a)(iii) of the Policy requires that the Complainant demonstrate that Respondent both registered and is using the disputed domain names in bad faith. Paragraph 4(b) of the Policy iterates a non-exclusive list of circumstances that constitute evidence of bad faith registration and use. A complainant need only demonstrate the existence of one of these circumstances in order to meet its burden under the third element of the Policy.

Complainant has put forth convincing evidence establishing the fourth circumstance described in paragraph 4(b), to wit, that Respondent registered and is using the Domain Names

intentionally . . . to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] website or location.

Not only does the renown of the GE name and mark make it improbable for third parties to claim rights or legitimate interests in domain names that incorporate the GE mark, but where a domain name “is so obviously connected with such a well-known product[,] its very use by someone with no connection with the product suggests opportunistic bad faith”. Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 (May 1, 2000).

Moreover, in a case involving the same complainant, a substantially identical domain name, and closely parallel facts, the panel found that a respondent’s redirection of Internet traffic using the <gebenefits.com> domain name to a range of commercial sites constituted bad faith registration and use. General Electric Company v. Momm Amed la, supra (wherein the redirection was to gambling, domain registration, online games and sports betting sites). “Given the massive reputation in GE, the redirection of Internet traffic is likely to deliver a commercial benefit to the Respondent and/or it[s] agents and associates.” Ibid.

This Panel sees nothing in the facts and circumstances of this case that would persuade it to reach some different or other conclusion here. While the manner in which web traffic is redirected is, perhaps, more sophisticated than it was in the General Electric Company v. Momm Amed la case, and the manner in which Respondent derives a financial benefit from the redirection more complex, remaining constant is that Respondent is using the notoriety and goodwill of Complainant’s GE marks without authorization to obtain a financial benefit. The well-documented bad faith conduct of Respondent and its alter egos in other cases makes the finding of bad faith registration and use in this case that much more compelling. Finally, the blatant typosquatting evidenced by Respondent’s registration and use of the <gebenfits.com> domain name is one further indicia of bad faith. Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, supra.

Accordingly, the Panel is satisfied that Respondent registered and is using the <gebenefit.com > and <gebenfits.com > domain names in bad faith and that element (iii) of the Policy’s paragraph 4(a) has also been established.

 

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel concludes that the relief requested in the Complaint should be granted and that the domain names <gebenefit.com > and <gebenfits.com > should be transferred to Complainant General Electric Company.


Seth M. Reiss
Sole Panelist

Date: March 30, 2005


1 The domain name <gebenefits.com> was the subject of General Electric Company v. Momm Amed la, WIPO Case No. D2000-1727 (March 21, 2001). It appears from that decision that the domain name was first registered by the respondent in that case. Complainant’s use of the <gebenefits.com> domain name must therefore have commenced sometime after March 21, 2001, when the decision that affected the transfer of the domain name to Complainant was rendered.

2 At the time the case was referred to this Panel for decision, neither domain name resolved into a functional website.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-0076.html

 

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