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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Hill-Rom Services, Inc v. Titan Net

Case No. D2006-0739

 

1. The Parties

The Complainant is Hill-Rom Services, Inc, Batesville, Indianapolis, United States of America, represented by Baker & Daniels, United States of America.

The Respondent is Titan Net, Eldoret, Kenya.

 

2. The Domain Name and Registrar

The disputed domain name <hillrom.org> is registered with Intercosmos Media Group d/b/a directNIC.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2006. On June 14, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On June 14, 2006 Intercosmos Media Group d/b/a directNIC.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 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 17, 2006.

The Center appointed Miguel B. O’Farrell as the sole panelist in this matter on July 24, 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

Since 1985 the Complainant is the owner of the trademark HILL-ROM registered in the United States of America under Nє 1.371.030 for “precision clocks/timers and parts therefor; telephones and parts therefor; electrical/gas supply units for providing electricity and medical gases in patient rooms in health care facilities and parts therefor in class 9; training hospital and health care personnel in the use and maintenance of patient room equipment in class 41; patient care lighting – namely, electric lamps and parts therefor in class 11; stretchers for patient transport and parts therefor in class 10; and spring mattresses; overbed tables and parts therefor; mobile storage and work centers and parts therefor; chairs and parts therefor; beds and parts therefor; bedside cabinets and parts therefor; desks and parts therefor in class 20”. The Complainant also owns many trademark registrations for HILL-ROM around the world.

The Respondent registered the domain name <hillrom.org> on February 7, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant asserts that:

It has been in business for over seventy-five years and began using the HILL-ROM trademark on medical products at least as early as 1972.

To date, the Complainant has obtained more than forty-four registrations of the trademark HILL-ROM covering twenty countries.

The Complainant is a leading manufacturer of equipment for the health care industry and a provider of associated services for wound, pulmonary and circulatory care, in addition, to being a provider of medical equipment outsourcing and asset management services.

For these reasons, HILL-ROM is a very well-known trademark.

The trademark HILL-ROM is confusingly similar to the domain name <hillrom.org>.

The Respondent has no rights or legitimate interests in respect of the domain name. The Respondent is using the domain name for commercial gain in bad faith. The Respondent is not authorized by the Complainant to use the HILL-ROM trademark.

The domain name was registered and is being used in bad faith. The Respondent’s website “www.hillrom.org” offers Internet search services and sponsored results, including links for medical and hospital equipment. Once a consumer clicks on a link, the consumer is directed to a webpage which lists various “sponsored links” advertising products competitive with the Complainant’s products. Thus, the Respondent uses the Complainant’s trademark to attract Internet users to its website for commercial gain.

Moreover, the Respondent has demonstrated a pattern of registering domain names containing trademarks of others.

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.

In accordance with the above, in previous UDRP decisions in which a respondent failed to file a response, the panels have based their decisions upon the complainant’s assertions, evidence and inferences drawn from the respondent’s failure to reply (The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064) since the respondent’s failure to dispute the allegations of the complainant permits the inferences that the complainant’s allegations are true. Kцstritzer Schwarzbierbrauerei v. Macros-Telekom Corp, WIPO Case No. D2001-0936.

Notwithstanding the above, the panel must not decide in the complainant’s favor solely given the respondent’s default. Cortefiel S.A. v. Miguel Garcнa Quintas, WIPO Case No. D2000-0140.

A. Identical or Confusingly Similar

The Complainant has proved that since 1985 it is the owner of the trademark HILL-ROM registered in the United States of America under Nє 1.371.030 for “precision clocks/timers and parts therefor; telephones and parts therefor; electrical/gas supply units for providing electricity and medical gases in patient rooms in health care facilities and parts therefor in class 9; training hospital and health care personnel in the use and maintenance of patient room equipment in class 41; patient care lighting – namely, electric lamps and parts therefor in class 11; stretchers for patient transport and parts therefor in class 10; and spring mattresses; overbed tables and parts therefor; mobile storage and work centers and parts therefor; chairs and parts therefor; beds and parts therefor; bedside cabinets and parts therefor; desks and parts therefor in class 20”. The Complainant also owns many trademark registrations for HILL-ROM around the world.

The Respondent registered the domain name <hillrom.org> on February 7, 2006.

It is evident that the Complainant’s trademark HILL-ROM is almost identical to the domain name <hillrom.org> and that the addition of the hyphen between “HILL and ROM” is not sufficient to distinguish the trademark from the domain name.

Therefore, the Panel finds that the Complainant has proved the first element required in paragraph 4(a) of the Policy.

A. Rights or Legitimate Interests

The Panel understands that proving “a negative proposition can be particularly difficult” and agrees “that the burden on a complainant regarding the second element is necessarily light, because the nature of the registrant’s rights or interests, if any, in the domain names lies most directly within the registrant’s knowledge” and that “once the complainant makes a prima facie showing that the registrant does not have rights or legitimate interest in the domain name, the evidentiary burden shifts to the registrant to rebut the showing by providing evidence of its rights or interests in the domain name.” The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.

The Complainant states that the Respondent has no rights or legitimate interests in the conflicting domain name since the Respondent is not authorized by the Complainant to use the trademark HILL-ROM. In addition, as explained in point “C” referred to below, the Complainant proved that the Respondent is not making a non-commercial or fair use of the domain name and that it is not using the domain name in connection with a bona fide offering of goods or services.

On the other hand, the Respondent failed to file a Response and therefore it did not bring to these proceedings any element to show that the Respondent has rights or legitimate interests in the disputed domain name.

In view of the above, and in accordance with the paragraphs 15(a), 14(a) and (b) and 10(d) of the Rules, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

Consequently, the Panel finds that the Complainant has proved the second element required in paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

As mentioned above, the Complainant has proved that since 1985 it is the owner of the trademark HILL-ROM registered in the United States of America under Nє 1.371.030 for “precision clocks/timers and parts therefor; telephones and parts therefor; electrical/gas supply units for providing electricity and medical gases in patient rooms in health care facilities and parts therefor in class 9; training hospital and health care personnel in the use and maintenance of patient room equipment in class 41; patient care lighting – namely, electric lamps and parts therefor in class 11; stretchers for patient transport and parts therefor in class 10; and spring mattresses; overbed tables and parts therefor; mobile storage and work centers and parts therefor; chairs and parts therefor; beds and parts therefor; bedside cabinets and parts therefor; desks and parts therefor in class 20”. The Complainant also owns many trademark registrations for HILL-ROM around the world.

The Complainant also has proved that under the name and trademark HILL-ROM it trades equipment for the health care industry and provides associated services.

The Complainant proved that the Respondent’s website “www.hillrom.org” contains a list of links to different websites, most of them offering medical products and services provided by the Complainant’s competitors. These links are listed under titles such as “Hospital Beds”, “Medical Equipment”, “Electric Wheelchair”, “Hospital Supplies”, etc.

This clearly shows that in all likelihood the Respondent perfectly knew the Complainant and its longstanding activities when it registered the domain name and that it in all probability chose the Complainant’s trademark with the intention to divert the Complainant’s web traffic to its website with commercial intentions.

Moreover, the fact that prior panels have found that the Respondent has engaged in abusive conduct with respect to other domain names reinforces the idea that the Respondent has in all likelihood once again acted in bad faith. (See WIPO Case Nos. F. Hoffmann-La Roche AG v. Titan Net, D2005-1151; Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helios Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., D2005-0890 and Chicago Pneumatic Tool Company v. Kentech, Inc., a.k.a. Titan Net, D2006-0345).

The above-mentioned reasons constitute sufficient evidence that the Respondent registered and uses the domain name in bad faith.

In view of the foregoing and in accordance with similar precedents and paragraphs 15(a), 14(a) and (b) and 10(d) of the Rules, the Panel finds that the Respondent has registered and used the domain name in bad faith.

Consequently, the Complainant has proved the third element required in paragraph 4(a) of the Policy.

 

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, <hillrom.org>, be transferred to the Complainant.


Miguel B. O’Farrell
Sole Panelist

Dated: July 28, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0739.html

 

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