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and Mediation Center
Symantec Corporation v. Nevis Domains
Case No. D2006-0747
1. The Parties
The Complainant is Symantec Corporation, Cupertino, California, United States of America, represented by Heller Ehrman LLP, United States of America.
The Respondent is Nevis Domains, “Charlestown, Nevis, 00000, KN.”
2. The Domain Name and Registrar
The disputed domain name <pcanywhere.com> is registered with Moniker
Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2006. On June 16, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On June 26, 2006, Moniker Online Services, LLC 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 29, 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 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 20, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 21, 2006.
The Center appointed Dennis A. Foster as the sole
panelist in this matter on August 2, 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
- The Complainant is a well-established computer software company that engages in significant worldwide business. It owns a valid United States trademark for the word mark PCANYWHERE (United States Trademark Registration No. 1,781,148; registered July 13, 1993, international class 009 for microcomputer software, Complaint Exhibit D).
- The Respondent is listed as the registrant
of the disputed domain name, <pcanywhere.com>, and the record of registration
was created on December 17, 1999. The Respondent uses that name for links to
web sites providing products and services that are similar to and in competition
with those sold by the Complainant.
5. Parties’ Contentions
- Founded in 1982, the Complainant is one of the largest computer software companies, specializing in Internet security and storage technology. The Complainant operates in more than 40 countries with in excess of 14,000 employees and $2.6 billion in fiscal year 2005 revenues. The Complainant’s clients include many well-known international businesses.
- Sold since at least May 1985, PCANYWHERE remote control software is one of the Complainant’s most successful products, having received much acclaim and many awards around the globe.
- The Complainant holds a valid United States trademark to its PCANYWHERE mark. Through continuous use, advertising and promotion, the Complainant has created extensive goodwill in the PCANYWHERE mark. As a result, the mark is famous throughout the world and represents the highest in quality computer products and services.
- In 1999, the Respondent registered the disputed domain name <pcanywhere.com>, identical to the mark in which the Complainant has not only registered trademark rights but common law trademark rights as well. At the disputed domain name, the Respondent causes substantial consumer confusion by providing advertising for and links to other commercial web sites where an Internet user can purchase computer security software in direct competition with Complainant’s products and services offered under its PCANYWHERE mark.
- During March, April and May 2006, the Complainant sent the Respondent several cease and desist letters and e-mails with respect to its use of the disputed domain name, to which the Respondent did not reply.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not using the domain name in connection with a bona fide offering of its own goods or services, but is only attempting to benefit from the fame and renown of the Complainant’s trademark. Moreover, the Respondent is not commonly known by the disputed domain name, and is making neither legitimate noncommercial nor fair use of the name.
- In intentionally diverting Internet users and customers to a web site for commercial and financial gain, the Respondent has registered and is using the disputed domain name in bad faith. This is demonstrated further by the fact that the Respondent must have had actual, as well as constructive, knowledge of the Complainant’s trademark and prominence in the computer software field – the field to which the Respondent’s offerings at the disputed domain name belong.
- The Respondent’s bad faith is also indicated by its lack of any legitimate interest in the disputed domain name and its refusal to relinquish the name to the Complainant in response to its letters and e-mails.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
To succeed in this proceeding pursuant to paragraph 4(a)(i-iii) of the Policy and obtain possession of the disputed domain name <pcanywhere.com>, the Complainant must demonstrate the following:
- the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name was registered and is being used by the Respondent in bad faith.
A. Identical or Confusingly Similar
The Complainant has provided the Panel with a sufficient showing of its valid
rights in the mark, PCANYWHERE, through inclusion in the Amended Complaint of
acceptable evidence attesting to its United States Trademark Registration for
that mark (see Exhibit D). Furthermore, the Panel notes that there is compelling
evidence that the Complainant also has established common law rights in the
same mark. The disputed domain name is identical to the mark, except for the
lower-casing of the lettering and the addition of the gTLD, “.com,”
distinctions which numerous prior Policy panels have found irrelevant in sustaining
identity between domain names and trademarks. See Valeant Pharmaceuticals
International and Valeant Canada Limited v. Carpela, WIPO
Case No. D2005-0786 (September 2, 2005), and Eastman Kodak Company v.
Dionne Lamb, NAF Case No. FA 97644 (July 17, 2001).
As a result, the Panel finds that the Complainant has sustained its burden of proof in demonstrating that the disputed domain name is identical to a trademark to which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has entered sufficient evidence to sustain a prima facie finding that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. In declining to respond, the Respondent does nothing to dispel the Panel’s belief in the Complainant’s assertions and fails to carry any burden in establishing such rights or legitimate interests.
In the absence of a Response, the Panel can find no evidence of the Respondent’s
rights or legitimate interests in the disputed domain name pursuant to the criteria
set forth in paragraph 4(c) of the Policy. There is no reasonable claim that
the Respondent has been known by the name, “Pcanywhere”, or any
similar name. Moreover, no evidence exists that the Respondent is using the
disputed domain name in a non-commercial or fair use manner. Apparently, the
Respondent was making use of the disputed domain name before any notice of the
dispute. However, the Complainant has provided the Panel with extensive evidence
(see Exhibit E) that such use was to offer products and services that compete
directly with those of the Complainant. Following the rationale of many prior
panels ruling under the Policy, the Panel cannot find that the Respondent’s
offering of similar and competing products under a domain name identical to
the Complainant’s valid trademark, without the Complainant’s license
or authorization, is a bona fide offering of goods and services for purposes
of paragraph 4(c)(i) of the Policy. See, e.g., Robert Bosch GmbH v. Asia
Ventures, Inc., WIPO Case No. D2005-0946,
(November 2, 2005); and Computerized Security Systems, Inc. d/b/a SAFLOK
v. Bennie Hu, NAF Case No. 157321 (June 23, 2003).
Therefore, the Panel determines that the Complainant has met its burden to show that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Though not intended as the exclusive method to determine bad faith in Policy proceedings, the Policy does list in paragraph 4(b)(i-iv) four separate conditions, the applicability of any one being sufficient to direct the Panel in finding that the Respondent registered and is using the disputed domain name in bad faith. In this case, the Panel shall consider the applicability of the condition listed in paragraph 4(b)(iv), to wit: Is the Respondent using the disputed domain name to intentionally attract, for commercial gain, Internet users to its web site or other on-line location, by creating the likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site or location or of a product or service on the Respondent’s web site or location? The Complainant has asserted, and supplied the Panel with ample evidence (see Exhibit E), that the Respondent is using the disputed domain name – identical to the Complainant’s trademark – to divert Internet users confused by its incorporation of the mark to web sites offering products similar to those produced by the Complainant. Since the assertions and evidence are not rebutted anywhere in the record, the Panel has decided to accept them as true.
The Panel finds accordingly that the Complainant has demonstrated conclusively
that the Respondent registered and is using the disputed the domain name in
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, <pcanywhere.com>, be transferred to the Complainant.
Dennis A. Foster
Dated: August 16, 2006