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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sam Ash Music Corporation v. Zoroastrian Tech

Case No. D2005-0205

 

1. The Parties

The Complainant is Sam Ash Music Corporation, Hicksville, New York, United States of America. Complainant is represented by Katten Muchin Zavis Rosenmann, New York, New York, United States of America.

The Respondent is Zoroastrian Tech, Maharashtra, India.

 

2. The Domain Name and Registrar

The dispute concerns the domain name <samsonairline.com> (the “Domain Name”).

The Domain Name is registered with Direct Information Pvt. Ltd., dba Directi.com (the “Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2005, by e-mail and on February 24, 2005, in hardcopy. The Acknowledgement of Receipt of the Complaint was issued on February 23, 2005.

On February 23, 2005, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 24, 2005, the Registrar transmitted by email to the Center its verification response confirming that the Domain Name is registered with the Registrar, that the Respondent is the current registrant of the Domain Name, and providing details of the administrative, technical and billing contacts for said registration.

On March 2, 2005, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“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 on March 2, 2005, and the proceedings commenced on the same day. The Respondent was required to submit a response on or before March 22, 2005, pursuant to Paragraph 5(a) of the Rules.

On March 17, 2005, the Respondent submitted its Response by email. In hardcopy, the Response was received by the Center on March 21, 2005. The Acknowledgment of Receipt of the Response was issued on March 17, 2005.

The Center appointed Michael A.R. Bernasconi as the sole panelist in this matter on March 23, 2005.

On March 23, 2005, after having received a Statement of Acceptance and Declaration of Impartiality and Independence from Michael A. R.  Bernasconi in accordance with Paragraph 7 of the Rules, the Center notified the representative of the Complainant and the Respondent by email that Michael A. R. Bernasconi has been appointed as Administrative Panel and that the decision is anticipated by April 6, 2005.

 

4. Factual Background

Complainant manufactures and distributes professional audio equipment and accessories on a worldwide scale. Since 1973, Complainant by and through its subsidiary Samson Technologies Corporation has used its “SAMSON” trademark and trade name on and in connection with professional audio products and accessories, including electronic mixing consoles and wireless microphones which Complainant manufactures and/or distributes. Complainant’s products bearing the name and mark “SAMSON” are sold throughout the world in Complainant’s retail stores, through its catalog and via its Internet platform “www.samsontech.com”, as well as on the “www.amazon.com” website.

The Complainant has provided evidence of some 35 trademark registrations consisting of or incorporating the name “samson” in many countries, including, inter alia, the United States of America, many European countries as well as Japan, Brazil, Hong Kong SAR of China, China, Singapore and Taiwan Province of China. In addition, Complainant has provided evidence of the trademark “AIRLINE” which it uses together with the “SAMSON” trademarks for wireless microphones, wireless instrument systems, consisting primarily of wireless microphones, instrument transmitters and wireless receivers.

The Respondent registered the domain name <samsonairline.com> on December 8, 2004. Under the Domain Name at issue, Respondent first provided links to offerors of Samson products and – after having been put on notice by Complainant by a cease and desist letter – modified its use of the Domain Name by now providing links to all kinds of service providers, such as sellers of airline tickets, car insurers, gambling casinos and cell phone manufacturers.

On December 21, 2004, Complainant as mentioned above sent Respondent a cease and desist letter, requesting a transfer of the Domain Name. In reply, Respondent wrote to Complainant on December 22, 2004, requesting a copy of Complainant’s trademark registrations. Complainant provided this information the same day, asking Respondent to cease all use of the “SAMSON” name and mark and take all necessary steps to immediately transfer the Domain Name to Complainant. Follow-up letters were sent to Respondent by Complainant on January 13, 2005, and on February 2, 2005. No evidence of a response to these letters has been provided.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed Domain Name is identical with its trademarks “SAMSON” and “AIRLINE” and the corresponding product line. Furthermore, Complainant argues that Respondent has no rights or legitimate interests in respect of the Domain Name because Respondent is not using it in connection with a bona fide offering of goods or services. Rather, Respondent uses the Domain Name in a deliberate attempt to attract users seeking Complainant’s website and products. In addition, Complainant argues that Respondent is neither known by the Domain Name nor does Respondent own any “SAMSON” trademarks. As a final point, Complainant contends that Respondent has registered and is using the Domain Name in bad faith as Respondent must have been aware of the “SAMSON” trademarks and the fame of the products. Respondent therefore simply attempted to attract for commercial gain internet users to the Respondent’s website or other online locations by creating a likelihood of confusion with the Complainants’ trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. The Respondent’s bad faith registration and use of the Domain Name in view of Complainant is confirmed by Respondent’s behavior further to the receipt of the cease and desist letter, as Respondent has modified its use of the Domain Name but still continues to use the web site in an infringing and illegitimate manner by misdirecting customers to advertising sites for commercial gain.

B. Respondent

The Respondent argues that the Domain Name consists of the two generic words “samson” and “airline”. Furthermore, Respondent contends that it acquires generic or otherwise useful abandoned domain names, which are initially parked to provide a page of general interested links. Respondent then develops each domain name by matching selected search results from a third-party advertiser database. This is what Respondent has done with the Domain Name, creating an advertising portal without misleading or diverting consumers in any way. However, the Domain Name, according to Respondent, has not been registered with online search engines yet. Finally, Respondent argues that Complainant has not registered any “SAMSONAIRLINE” trademark.

 

6. Discussion and Findings

According to Paragraph 4(a) of the Policy, the Complainant must prove that:

A. The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

B. the Respondent has no rights or legitimate interests in respect of the domain name; and

C. the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Complainant has provided evidence of some 35 “SAMSON” trademark registrations as well as of the trademark “AIRLINE”.

The Respondent argues that the Complainant has not registered the trademark “SAMSONAIRLINE” and that therefore, the requirements of Paragraph 4(a)(i) of the Policy are not met.

The disputed Domain Name combines the Complainant’s two trademarks “SAMSON” and “AIRLINE”. The Panel is aware that “airline” is a rather generic word and that the term “samson” by itself is essentially a name, standing for “a man of great physical strength”, as Respondent argues. The Complainant nevertheless owns trademark rights with regard to these two words.

In the context of the present case, the Panel finds that the Complainant does satisfy the requirements of the Policy Paragraph 4(a)(i): “your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights”. Without doubt, the Domain Name may be understood as a reference to the Complainant’s fairly famous “SAMSON” trademarks, because that term stands at the beginning of the combination of the two words. The Domain Name is thus confusingly similar in particular with Complainant’s “SAMSON” trademark, but also with its trademark “AIRLINE”.

In addition, the Domain Name at issue consists of Complainant’s trademarks “samson” and “AIRLINR”, to which only the suffix “.com” is added. The suffix “.com” is a generic top level domain name, which of course is without legal significance to render a domain name dissimilar or to prevent customer confusion. The distinctive element of the Domain Name is obviously the term “samsonairline”, while the suffix “.com” is of descriptive nature only.

In these circumstances, Internet users finding “www.samsonairline.com” are likely to be misled into thinking that the Complainant is the registrant or is otherwise associated with the disputed Domain Name, or are at least confused.

In the view of the Panel, the disputed Domain Name is essentially identical with and therefore confusingly similar to the trademarks of Complainant. The Complainant has succeeded in proving that a risk of confusion is very likely. The first criterion, as per Paragraph 4(a) of the Policy, is established.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy defines the circumstances which, if proved, establish a registrant’s rights or legitimate interests to a disputed domain name.

There is no evidence that the Respondent is commonly known by the disputed Domain Name or has been authorized by the Complainant to use the “SAMSON”, “AIRLINR” trademarks.

Initially, it seems according to the evidence submitted by Complainant (Exhibit F, the accuracy of which has not been disputed by Respondent), that the Respondent used the Domain Name to provide links to numerous offerors of goods similar to Complainant’s products. It is quite apparent to the Panel that Respondent, at least since having received Complainant’s cease and desist letter, has not been using and has not made preparations to using the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods and services.

An informal check of the website under the Disputed Domain Name on April 6, 2005, showed that no goods or services are offered. Instead, the various categories of items that are pretended to be offered on the homepage of Respondent solely divert the Internet traffic to numerous other websites around the globe. These linked websites, however, are to a large extent unrelated to the categories of goods which are purportedly offered on Respondent’s website. Some of the links provided on the Respondent’s homepage are links to retailers and service providers of all kinds and there are also sponsored links to websites with pornographic content, such as “www.camcandy.com” or “www.sexshop24.ch” to name but a few. A second informal check of the Panel of the website under the disputed Domain Name on April 21, 2005, furthermore showed that a user entering the Domain Name is automatically redirected to another domain, i.e. that Respondent no longer runs a homepage with the Disputed Domain Name.

In these circumstances, the Panel is of the view that the sole diversion of Internet traffic by Respondent to other, unrelated websites, does not represent a use of the Domain Name in connection with a bona fide offering of goods and services. Rather, the conduct of Respondent appears to serve the purpose of generating revenues, e.g. from advertised pay-per-click products. Further, it misleads Internet users by diverting traffic intended for the Complainant to websites, which are in no way connected with the word “samson”, and it may create the impression of association with the Complainant’s group.

The Panel in the circumstances fails to find any evidence that would support a finding of a legitimate interest by Respondent. Thus, the second requirement, as per Paragraph 4(a) of the Policy, is established.

C. Registered and used in Bad Faith

The trademark “SAMSON” is fairly well known in the field of audio equipment and accessories throughout the world. Therefore, the Respondent is likely to have known of Complainant, its products and its trademarks prior to registering the disputed Domain Name. This finding of the Panel is also evidenced by Exhibit F to the Complaint, which illustrates that the initial content of the website running under the Domain Name predominantly contained links and information to many internet providers of Complainant’s products such as “Samson Wireless Blowout”, “Samson UHF Wireless”, “Samson Audio Sale” and many others. This is in contradiction with the Respondent’s argument that it had chosen the Domain Name for the generic nature of the English words “samson” and “airline”.

Respondent argues that it acquires “generic or otherwise useful abandoned domain names, which are initially parked to provide a page of general interest links”. Whereas “parking” domain names by itself is insufficient evidence for bad faith use of a domain name, the Panel in the present case must come to the conclusion that Respondent’s registration and use of the Domain Name is nevertheless not in compliance with the Rules.

In relation to the initial use of the Domain Name by Respondent, the disputed Domain Name is so obviously connected with the name, the trademark and in particular the products of the Complainant’s group, that its very use by Respondent with no connection to the Complainant suggests opportunistic bad faith in the least.

The current use of the Domain Name by the Respondent supports this finding. In view of the Panel, the Respondent based on its own statements may well be engaged in a strategy of registering domain names based on well-known or famous trademarks to maximize traffic to one or more directory-based websites. This fortifies the Complainant’s contention that the Domain Name in the present case was registered and may have been used for this purpose. The Panel is therefore satisfied that on balance of probabilities the Respondent has engaged in intentionally attempting to attract, for commercial gain, Internet users to its website or other online locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and that this constitutes registration and use in bad faith.

Nevertheless, for the sake of completeness, the Panel will consider the Respondent’s citation of Virgin Enterprises v. Internet Domains, virginmail.com, WIPO Case No. D2001-1008. This case is not helpful to the Respondent. In the Virgin-case, a request for transfer by complainant was dismissed because the Panel found that the domain name at issue and the trademarks of the complainant Virgin Enterprises were neither identical, nor confusingly similar. Besides, in the Virgin-case, the domain name in dispute had been registered by the respondent before a particular product was launched on the market by the complainant Virgin Enterprises. The Panel therefore did not deny the respondent’s rights or legitimate interests in the disputed domain name and denied a bad faith registration, because the use of the name virgin as a part of a domain name by the respondent who was running an adult web site was not sufficient evidence to the panel for a bad faith registration. The panel in the Virgin-case however found for a bad faith use of the domain name in dispute, as the respondent had opportunistically decided to offer the domain name to the complainant for sale. The facts of the Virgin-case as well as its finding are thus rather distinguished from the present dispute before the Panel, where the Domain Name is confusingly similar to the trademarks of Complainant in the first place, and where it is quite clear from the initial web page Respondent has set up under the Domain Name, that Respondent must have been aware of Complainant and its products when registering the Domain Name.

To conclude, the third requirement of Paragraph 4(a) of the Policy is satisfied.

 

7. Decision

Therefore, as directed by Paragraphs 14(a) and (b) and 15(a) of the Rules, the Panel finds:

(1) that the Domain Name is confusingly similar to the Complainant’s trademark;

(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(3) that the Domain Name has been registered and is being used in bad faith by the Respondent.

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <samsonairline.com> shall be transferred to the Complainant.


Michael A.R. Bernasconi
Sole Panelist

Dated: April 26, 2005

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-0205.html

 

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