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and Mediation Center
Konrad Hornschuch AG v. MegaWeb.com Inc.
Case No. D2006-0293
1. The Parties
The Complainant is Konrad Hornschuch AG, WeiЯbach, Germany, represented by HK2 Rechtsanwдlte, Berlin, Germany.
The Respondent is MegaWeb.com Inc., Wilmington, Delaware, United States of
2. The Domain Name and Registrar
The disputed domain name <skai.com> is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 8, 2006. On March 8, 2006, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On March 8, 2006, Tucows 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 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 March 15, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 4, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 7, 2006.
The Center appointed Peter G. Nitter as the sole panelist
in this matter on April 25, 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,
4. Factual Background
The Complainant is the owner of a number of national
and international trademark registrations of SKAI, i.e. Community trademark
No. 002690568, used in association with a variety of its products, including
foils and coated carrier material and artificial leather, which is widely used
for bike saddles, shoes, suitcases and other things.
5. Parties’ Contentions
The Complainant submits that the disputed domain name is identical or confusingly similar to the Complainant’s trademark SKAI. The Complainant has several registrations of SKAI as a trademark and has used the trademark since the 1950’s.
According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name as the Respondent is neither commonly known by “Skai,” nor has the Respondent used or demonstrably prepared to use the disputed domain name in connection with a bona fide offering of goods or services.
The Complainant submits that redirecting the domain name to the advertising portal “www.megago.com” is in itself illegitimate and that the Respondent is a well known cybersquatter that offers pornographic material without age limitations at its webpages.
The Complainant further submits that there is no relationship between the Complainant and the Respondent and that the Respondent has no legitimate interests in the disputed domain name.
The Complainant submits that the disputed domain name was registered and is being used in bad faith as the Respondent, by redirecting the domain name to “www.megago.com”, is attempting to attract for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark.
The Complainant further submits that the Respondent registered the disputed domain name in order to prevent the Complainant from reflecting the mark in a corresponding domain name, thereby blocking the Complainant from offering its products under the disputed domain name.
According to the Complainant, the Respondent has shown a pattern of conduct representing a large number of trademark infringements.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is identical to the Complainant’s SKAI mark, save for the “.com” generic top-level domain. This minor difference does not serve to distinguish the disputed domain name from the Complainant’s trademark. The disputed domain name is virtually identical to the Complainant’s mark, and the Panel therefore finds that the requirement of confusing similarity between the domain name at issue and the Complainant’s trademark is fulfilled.
B. Rights or Legitimate Interests
The Respondent has not used or shown any “demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services”, cf the Policy, paragraph 4(c)(i). Nothing about the content of the websites resolving from the disputed domain name suggests otherwise.
Similarly, the Respondent has not shown that the Respondent or its business “has been commonly known by” the disputed domain name, cf the Policy, paragraph 4(c)(ii).
Further, the Complainant did not grant permission to the Respondent to register
the disputed domain name, nor did the Complainant and the Respondent have any
sort of pre-dispute commercial or other relationship, see for instance Julia
Fiona Roberts v. Russell Boyd, WIPO Case
No. D2000-0210, section 6.
On this background, the Panel finds that the Respondent has not demonstrated any of the circumstances that constitute rights to or legitimate interests in the domain name at issue pursuant to the Policy. Further, the Panel finds that the Respondent has, in no other way, demonstrated rights to or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Based on the case file, the Panel finds it likely that the Respondent has engaged in a pattern of registering domain names in order to prevent the owners of various trademarks from reflecting their marks in corresponding domain names.
Further, as a result of the fame of SKAI, the Panel finds it not unlikely that the Respondent was aware of the Complainant’s rights when registering the domain name at issue. The Panel finds this an indication of bad faith registration and use pursuant to the Policy.
In addition, the website resolving to the domain name at issue redirects to an advertisement website, “www.megago.com.” The registration and use of the disputed domain name thus appears to be an attempt to attract for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark. This is evidence of bad faith registration and use pursuant to the Policy, paragraph 4(b)(iv).
As there is no explanation from the Respondent as to why he registered the domain name, one may agree, based on the case file, that the Complainant’s explanation is credible.
Accordingly, the Panel finds that the Respondent has registered and used the
domain name at issue in bad faith.
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, <skai.com>, be transferred to the Complainant.
Peter G. Nitter
Dated: May 8, 2006