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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Network Solutions, LLC v. South EastEnterprise, Inc.

Case No. D2005-1243

 

1. The Parties

The Complainant is Network Solutions, LLC, Herndon, Virginia, United States of America, represented by Ballard Spahr Andrews & Ingersoll, LLP, United States of America.

The Respondent is South EastEnterprise, Inc., Geneva, Switzerland; South EastEnterprise, Inc., Los Angeles, California, United States of America, and South EastEnterprise, Inc., Manila, Philippines.

 

2. The Domain Names and Registrar

The disputed domain names <netssol.com>, <networksokutions.com>, <networksolutuons.com>and <neyworksolutions.com> (hereinafter, each a “Disputed Domain Name”, and collectively, “Disputed Domain Names”) are registered with OnlineNic, Inc. d/b/a China-Channel.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2005. On December 2, 2005, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com, a request for registrar verification in connection with the domain names at issue. On December 5, 2005, OnlineNic, Inc. d/b/a China-Channel.com 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 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 13, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 2, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2006.

The Center appointed Mark Min-Jen Yang as the Sole Panelist in this matter on January 23, 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

Complainant has two US federal trademark registrations for the trademark NETWORK SOLUTIONS (hereinafter, “NETWORK SOLUTIONS Trademark”):

No. 2,468,676, registered in 2001, in association with the services of: (i) “Commercial information and directory services featuring directories for locating the computer network addresses and demographic information of entities; providing a directory of organizations, individuals, address, and resources accessible through the use of a global computer network; and computer network address management services, namely, providing services enabling entities to access, add, modify or delete information relating to their computer network addresses”; and (ii) “computer services, namely, providing search engines for obtaining data on a global computer network, registering and tracking addresses on a global computer networks”; and

No. 1,330,193, registered in 1985, in association with the services of “designing and programming computer controlled communications systems”.

Complainant has pending US trademark applications for its NETWORK SOLUTIONS Trademark (as particularized in paragraph 14 of the Complaint). Complainant has applications and/or registrations for its NETWORK SOLUTIONS Trademark in countries worldwide (Australia, Brazil, Canada, China, European Community, India, Japan, South Korea, Mexico, Taiwan, and Uruguay, as more particularized in paragraph 17 of the Complaint).

Complainant has US federal trademark registration No. 2,463,054 for the trademark NETSOL (hereinafter, “NETSOL Trademark”) for the following services:

“commercial information and directory services featuring directories for locating the computer network addresses and demographic information of entities”;

“educational services, namely, providing instruction and demonstrations in the use and management of computer networks, corporate local networks, global computer information networks, and computer network addresses”; and

“computer consultation regarding computer networks and internal computer networks, security services for computer networks and internal computer networks, namely, designing fire walls for others, and computer systems management services, namely, providing search engines for obtaining data on a global computer network, registering and tracking addresses on global computer networks, providing a directory of organizations, individuals, addresses, and resources accessible through the use of a global computer network; computer network address management services, namely, providing services enabling entities to access, add, modify or delete information relating to their computer network addresses.”

Complainant has registrations for its NETSOL Trademark in France and Tunisia (as particularized in paragraph 17 of the Complaint).

Complainant’s NETSOL Trademark and NETWORK SOLUTIONS Trademark are collectively referred to herein as “Complainant’s Trademarks” or “it’s Trademarks”.

The Disputed Domain Names <networksokutions.com>, <networksolutuons.com> and <neyworksolutions.com> were registered by Respondent on December 19-20, 2005, with the Registrar.

The Disputed Domain Name <netssol.com> was registered by Respondent on May 14, 2001, with the Registrar.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that it has substantial rights in its NETSOL Trademark, and that the Disputed Domain Name <netssol.com> is identical or confusingly similar thereto, that Respondent has no rights or legitimate interests in that Disputed Domain Name, and that that Disputed Domain Name was registered and is being used in bad faith.

Complainant contends that it has substantial rights in its NETWORK SOLUTIONS Trademark, and that the Disputed Domain Names <networksokutions.com>, <networksolutuons.com> and <neyworksolutions.com> are each identical or confusingly similar thereto, that Respondent has no rights or legitimate interests in those Disputed Domain Names, and that those Disputed Domain Names were registered and are being used in bad faith.

B. Respondent

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

 

6. Discussion and Findings

One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center.

In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.

In accordance with paragraph 4(a) of the Policy, to succeed in this UDRP proceeding, Complainant must prove, in respect of each of the Disputed Domain Names (A) that it is identical or confusingly similar to one of its Trademarks in which Complainant has rights, (B) that Respondent has no rights or legitimate interests in respect of it, and (C) that it was registered and is being used in bad faith. Before these requirements are considered below, the Panel makes the following factual findings.

First, Complainant contends that it was the first and continues to be a leading registrar of domain names in the Internet world, well recognized by its Trademarks, and it continues to promote its services with its Trademarks through millions of dollars per year of promotional and advertising activities. The Panel accepts Complainant’s contention that it has an imminent position in the Internet world, recognized by its Trademarks, especially for domain name registrations.

Secondly, Complainant contends that the Disputed Domain Names <networksokutions.com>, <networksolutuons.com> and <neyworksolutions.com> resolve to a page which prominently displayed links to Network Solutions, Yahoo and Go Daddy. These Disputed Domain Names are linked to a parking service, Trafficz that offers URL forwarding and framed redirection. The average click-through rate for any Trafficz parking program can range from a few cents to several dollars. The Disputed Domain Name <netssol.com> resolves to a homepage offering links relating to website design services. The Panel accepts Complainant’s preceding contentions, especially in the absence of any contrary evidence or argument from Respondent.

Thirdly, Complainant contends that Respondent has been involved in prior domain name dispute decisions (more particularized below under “C. Registered and Used in Bad Faith”). Although it is not immediately apparent from some of those decisions to the Panel that Respondent was involved, the Panel accepts that contention and paragraphs 6-7 of the Complaint describing its information about the Respondent. because, especially in the absence of contrary evidence or argument from Respondent, there are some indications in some of those decisions that the Respondent has adopted various “alter egos” and in particular, “WWW Enterprise, Inc.”.

A. Identical or Confusingly Similar

Complainant contends that the Disputed Domain Names are confusingly similar to its Trademarks to which it has rights. In particular, Complainant contends the following:

Disputed Domain Name <networksolutuons.com> differs from its NETWORK SOLUTIONS Trademark only by the substitution of “U” for the “I” thereof;

Disputed Domain Name <neyworksolutions.com> differs from its NETWORK SOLUTIONS Trademark only by the substitution of “Y” for the first “T” thereof;

Disputed Domain Name <networksokutions.com> differs from its NETWORK SOLUTIONS Trademark only by the substitution of “K” for the “L” thereof; and

Disputed Domain Name <netssol.com> differs from its NETSOL Trademark only by the addition of the extra “S” after the “S” thereof;

and that such differences are insufficient to overcome a finding of confusing similarity, especially considering, as Complainant noted, that, on the standard keyboard, “U” is adjacent to “I”, “Y” is adjacent to “T, and “K” is adjacent to “L”. The generic top level domain of “.com” cannot serve to distinguish.

The Panel accepts Complainant’s contentions and concludes that the first requirement of the Policy is met.

B. Rights or Legitimate Interests

Complainant contends the following: that it has not authorized Respondent to use any of its Trademarks in any way, shape or form, much less as part of any of the Disputed Domain Names; that not one of the Disputed Domains Names reflects any of Respondent’s business names; that Respondent does not own any trademarks that are identical or similar to any of the Disputed Domain Names; that Respondent is not making a legitimate non-commercial or fair use of any of the Disputed Domain Names and that its use of the Disputed Domain Names is with the intent for commercial gain and to misleadingly divert consumers or to tarnish Complainant’s Trademarks.

Respondent has provided no arguments or evidence of legitimate interests to counter Complainant’s contentions. By virtue of the legal status of its Trademarks as registered trademarks of Complainant in the United States of American and elsewhere and Complainant’s contentions about its substantial (million dollar annual) efforts in promoting its services with its Trademarks and the size and success of Complainant’s services in the United States of America and worldwide, and by Complainant’s contention that there is no business relationship with Respondent, Complainant argues for the conclusion that Respondent has no rights or legitimate interests in the Disputed Domain Names. The Panel, especially in the absence of Respondent’s response, considers that the circumstances described in paragraph 4(c) of the Policy, for proof of legitimate interest by Respondent in the Disputed Domain Names, likely do not exist.

The Panel concludes that the second requirement of the Policy is met.

C. Registered and Used in Bad Faith

Complainant contends that the Disputed Domain Names were registered and are used in bad faith.

Complainant contends that Respondent is engaged in a practice commonly referred to as “typosquatting”. Typosquatting involves the registration of common misspellings of famous marks and the diversion, for commercial gain, of Internet users who misspell famous marks. Typosquatting is inherently parasitic and of itself evidence of bad faith, and has been commonly recognized as evidence of bad faith with regard to paragraph 4(a)(iii) of the Policy. See National Association of Professional Baseball Leagues, Inc. v. Zuccarini, WIPO Case No. D2002-1011 (January 21, 2003).

Complainant contends that the only conclusion to be drawn from the evidence is that Respondent has (a) intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation, or endorsement of its website or (b) Respondent has registered the domain name primarily for the purpose of disrupting the business of the Complainant.

The Panel accepts the contended for conclusion. This conclusion is reinforced by Complainant’s uncontroverted contention that Respondent (through an alter ego) has made it a practice of cybersquatting domain names that are virtually identical to other parties’ marks. See Kelley Blue Book Company, Inc. v. South EastEnterprise, WIPO Case No. D2004-0499 (August 23, 2004); Air Austral v. WWW Enterprise, Inc., WIPO Case No. D2004-0765 (October 29, 2004); Deutsche Telekom AG v. WWW Enterprise, Inc., WIPO Case No. D2005-0311 (September 7, 2005); and Amanresorts Limited v. WWW Enterprise, Inc., WIPO Case No. D2005-0384 (June 20, 2005). The Respondent has been engaging in a pattern of registering domain names containing others’ trademarks to prevent the owners of the relevant trademarks from registering them. Previous decisions that the Respondent has acted in bad faith are further indications of the Respondent’s state of mind in registering the Disputed Domain Names herein. See Pfizer Inc. v. Cameron Jackson, WIPO Case No. D2005-0909 (October 19, 2005).

The Panel concludes that the third requirement of the Policy is 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 names <netssol.com>, <networksokutions.com>, <networksolutuons.com> and <neyworksolutions.com>, be transferred to the Complainant.


Mark Min-Jen Yang
Sole Panelist

Dated: February 6, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2005/d2005-1243.html

 

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