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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Equity International Inc., d.b.a. Rotel of America v. Ramazan Gunes, d.b.a. RG International Pty. Ltd.

Case No. D2006-0721

 

1. The Parties

The Complainant is Equity International Inc., d.b.a. Rotel of America, North Reading, MA, United States of America.

The Respondent is Ramazan Gunes, d.b.a. RG International Pty. Ltd. of Australia.

 

2. The Domain Name and Registrar

The disputed domain name <roteldigital.com> is registered with Dotster, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2006. On June 13, 2006, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain name at issue. On June 13, 2006, Dotster, Inc. 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 on June 19, 2006. 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 June 23, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 13, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 14, 2006.

The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on July 21, 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.

On August 2, 2006, the Panel issued an Administrative Procedural Order requesting the Complainant to provide: 1) evidence of ownership of the trademark ROTEL by sending copies of valid and enforceable registration certificates, and 2) evidence to prove the corporate relationship between the Complainant and The Rotel Co. Ltd. in case the ROTEL trademark rights were in the name of The Rotel Co. Ltd. and not in the name of Complainant.

 

4. Factual Background

The domain name <roteldigital.com> was registered on February 27, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant alleges that:

The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The ROTEL web address, brand, logo, products, and all other intellectual property of Rotel are the subject of this Complaint. The Respondent has clearly set up a website that is designed to confuse Complainant’s customers by establishing and using a brand name (Rotel Digital), that could easily be confused with our long established ROTEL brand (incorporated 1961).

The trademarks on which the Complaint is based are the following:

ROTEL, applied in Canada, by The Rotel Co., Ltd., on 13/12/71, under Nє 348595, class 9.

ROTEL, applied in China, by The Rotel Co., Ltd., on 22/1/94, under Nє 806635, class 9.

ROTEL, applied in Russia, by The Rotel Co., Ltd., on 29/12/95, under Nє 135571, class 9.

ROTEL, applied in Singapore, by The Rotel Co., Ltd., on 16/1/70, under Nє T70/48199A, class 9.

ROTEL, applied in Switzerland, by The Rotel Co., Ltd., on 7/4/89, under Nє 374264, class 9.

ROTEL, applied in U.S.A., by The Rotel Co., Ltd., on 11/12/81, under Nє 73341163, class 9.

The Respondent has no rights or legitimate interests in respect of the domain name.

The Respondent is selling electronic goods with the Rotel Digital name that have the same consumer use as the goods identified by the ROTEL brand and thereby Respondent profits from the established intellectual property of Rotel. The Complainant is an established electronics company that has been using the ROTEL brand name for 45 years and has created a loyal customer base that may be harmed by the misleading use of a similar brand name.

The domain name was registered and is being used in bad faith: The Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark.

Finally, the Complainant requests that the domain name be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

To qualify for cancellation or transfer, the Complainant must prove each element of paragraph 4(a) of the Policy, namely:

(i) The disputed domain name is 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 interests in respect of the domain name; and

(iii) The disputed domain name has been registered and is being used in bad faith.

In accordance with paragraph 15(a) of the Rules, the panel shall decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.

In accordance with paragraph 14(a) of the Rules, in the event that a party, in the absence of exceptional circumstances, does not comply with any of the time periods established by the Rules or the panel, the panel shall proceed to a decision on the complaint and in accordance with paragraph 14(b), if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the panel, the panel shall draw such inferences therefrom as it considers appropriate.

In accordance with paragraph 10(d) of the Rules, the panel shall determine the admissibility, relevance, materiality and weight of the evidence.

A. Identical or Confusingly Similar

To prove its trademark rights, the Complainant filed a list of six “ROTEL trademark registrations in major territories outside the EU”, with no supporting evidence of ownership. From this list, the owner of these trademarks would be The Rotel Co. Ltd. from Tokyo, Japan. At the bottom of the list appears a date: January 27, 2004.

In view of this, the Panel issued an Administrative Procedural Order requesting the Complainant: 1) evidence of ownership of the trademark ROTEL by sending copies of valid and enforceable registration certificates, and 2) evidence to prove the corporate relationship between the Complainant and The Rotel Co. Ltd. in case the ROTEL trademark rights were in the name of The Rotel Co. Ltd. and not in the name of Complainant.

To comply with this Administrative Procedural Order, the Complainant filed a copy of a distribution agreement executed between The Rotel Co. Ltd. and B&W International Ltd, in which, among other provisions, The Rotel Co. Ltd. authorized B&W International Ltd. to use the ROTEL trademarks.

In the Panel’s view the copy of the distribution agreement filed by the Complainant neither proves ownership of the trademark ROTEL by the Complainant nor any corporate relationship between the Complainant and The Rotel Co. Ltd.

The Complainant has also stated that it is an established electronics company that has been using the Rotel brand name for 45 years and has created a loyal customer base that may be harmed by the misleading use of a similar brand name.. In support of that contention the Complainant has provided a single page photograph of an electronic device labeled “Surround Sound Processor” bearing the ROTEL mark with the following words in the lower right hand corner, “Product Catalogue 2005-2006, ROTEL”. No direct evidence of use of the ROTEL mark by the Complainant has been provided, nor of any goodwill or distinctiveness that may have been generated by the Complainant in relation to the use of that mark over time sufficient to ground a finding that the Complainant has acquired unregistered or common law rights in that mark.

In sum, the Panel finds that the Complainant has failed to establish to the Panel's satisfaction that ROTEL is a mark in which the Complainant has rights. This finding is without prejudice to any future proceedings that may be brought in relation to the disputed domain name by a registered owner of the ROTEL mark.

In view of the above, The Panel finds that the Complainant has failed to prove the first element required in paragraph 4 (a) (i) of the Policy, which makes it unnecessary to further analyze whether the Complainant has proved the rest of the elements required in paragraph 4 (a) (ii) and 4 (a) (iii).

 

7. Decision

For all the foregoing reasons, the Complaint is denied.


Miguel B. O'Farrell
Sole Panelist

Dated: September 5, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0721.html

 

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