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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Salt River Project Agricultural Improvement and Power District v. Gordon Cheng

Case No. D2005-1237

 

1. The Parties

The Complainant is Salt River Project Agricultural Improvement and Power District, Phoenix, Arizona, United States of America, represented by Leo L. Miller.

The Respondent is Gordon Cheng, Hong Kong, SAR of China.

 

2. The Domain Name and Registrar

The disputed domain name <srp.net> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 30, 2005. On December 1, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 7, 2005, eNom 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint December 7, 2005. The Center verified that the Complaint together with the amendment to 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 December 14, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 3, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2006.

The Center appointed David Perkins as the sole panelist in this matter on January 16, 2006. 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

4.1 The Complainant, Salt River Project Agricultural Improvement and Power District, is an agricultural improvement district in the State of Arizona, United States of America. The Complainant has provided public utility services in the form electricity and water distribution, electricity transmission and electricity generation since at least March 31, 1954.

4.2 The Complainant is the proprietor of US Service Mark “SRP” in International Class 39 (Public Utility Services in the nature of electricity and water distribution; and utility services, namely transmission of electricity) and 40 (Utility Services, namely generation of electricity). The mark was filed on December 30, 1998, and was registered on January 19, 1999. As stated above, first use in commerce of the SRP Service Mark is claimed from March 31, 1954.

4.3 The Complainant is also the registrant of the domain name <srpnet.com>, which was first registered in November 1998.

4.4 In the absence of a Response, nothing is known of the Respondent, Mr. Cheng, save that he is the registrant of the domain name in issue <srp.net> which was registered on November 6, 2000.

 

5. Parties’ Contentions

A. Complainant

1. The Complainant asserts that the disputed domain name is identical to its SRP registered US Service Mark.

2. Further, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the domain name in use for the following reasons. First, the Complainant has not licensed or otherwise authorized the Respondent to use the SRP Service Mark. Second, the Complainant asserts that the Respondent cannot bring himself within any of the circumstances set out in paragraph 4c of the Policy. That paragraph of the Policy identifies circumstances which (if proved) demonstrate a Respondent’s rights to and legitimate interests in the domain name in issue. As to the Complainant’s burden of proof under para. 4(a)(ii) of the Policy, the Complainant cites Belup d.d.v. Wachem d.o.o.,WIPO Case No. D2004-0100. In that case the Panel found that where the Complainant demonstrated rights in the trademark asserted and that it had not licensed or otherwise authorized the Respondent to use that mark, the burden is met.

3. As to registration and use in bad faith, the Complainant relies on paragraph 4(b)(iv) of the Policy. Complainant’s case is set out in its lawyer’s letter of November 23, 2005, to Oversee.net, the web host for the Respondent’s “srp.net” website. In material part, that letter reads:

“There are false links at “www.srp.net” entitled “Pay Bill”, “Salt River Home Page”, “Customer Service”, “Employment” and “Billing”. These links do not provide an SRP authorized means of paying bills, do not link to the genuine Salt River Home Page, do not link to the genuine SRP Customer Service Page, and do not provide genuine information about SRP Billing and Employment. The website, by design, causes consumers to believe, mistakenly, that the origin and sponsorship of “www.srp.net” is the Salt River Project. The website’s obvious purpose is to defraud and frustrate customers who will believe, falsely, they are dealing with SRP when they access this website.”

Also referring to the Respondent’s website, the letter states:

“This is irrefutably part of an obvious attempt to confuse SRP utility customers, who might mistakenly type in srp.net instead of srpnet.com, into thinking they have accessed and arrived at the genuine SRP website. Mr. Cheng obviously is seeking click-through advertising revenue from the linked sites.”

B. Respondent

As stated, no Response has been filed.

 

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:

- that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- that the Respondent has no rights or legitimate interests in respect of the domain name; and

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

6.2 As stated above, the Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent’s rights or legitimate interests in the domain names in issue.

6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found by the Panel to be present shall, be evidence of the registration and use of a domain name in bad faith.

6.4 Identical or Confusingly Similar

The operative part of the domain name in issue - srp - is identical with the Complainant’s SRP registered service mark. Accordingly, the Complainant satisfies the first requirement of the Policy.

6.5 Rights or Legitimate Interests

In the absence of a Response, the Complainant has satisfied the burden of demonstrating that the Respondent has no rights or legitimate interests in the domain name in issue. The Complainant quotes from the Decision in WIPO Case No. D2004-0110 which reads:

“While the overall burden of proof is on a Complainant, the element of possible rights or legitimate interests of Respondent in the disputed domain name involves Complainant proving matters, which are peculiarly within the knowledge of Respondent. It involves the Complainant in the often impossible task of proving the negative. This should, as indicated correctly in WIPO Case No. D2001-0121, Julian Barnes .v. Old Barn Studios, be approached as follows: Complainant makes the allegation and puts forward what he can in support (e.g. he has rights to the name, Respondent has no rights to the name of which he is aware, he has not given any permission to Respondent). Unless the allegation is manifestly misconceived, Respondent has to demonstrate his rights or legitimate interests in respect of the domain name under paragraph 4(c) of the Policy.”

6.6 The Panelist agrees with this approach. Here there is no Response and no evidence of any of the circumstances identified in paragraph 4(c) of the Policy. Indeed, the evidence from the Respondent’s website described in the Complainant’s letter of November 23, 2005 (see, paragraph 5.A.3 above) strongly indicates that the Respondent could not bring himself within those circumstances. Accordingly, the Complainant satisfies the second requirement of the Policy.

6.7 Registered and Used in Bad Faith

Extracts from the Complainant’s own website at “www.srpnet.com” and from the Respondent’s were enclosed with the letter dated November 23, 2005. The Complainant’s assertions of Respondent’s bad faith made in that letter and set out (in part) in paragraph 5.A. sub 3 above are amply illustrated from a comparison of the respective home pages. The intention behind the Respondent’s registration and use of the domain name seems to be to defraud Internet users into believing, falsely, that they are dealing with the Complainant.

6.8 Accordingly, the Panel finds that the circumstances of paragraph 4(b)(iv) of the Policy are present in this case and, consequently, that the twin requirements of paragraph 4(a)(iii) pf the Policy are met.

 

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 <srp.net> be transferred to the Complainant.


David Perkins
Sole Panelist

Dated: January 30, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1237.html

 

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