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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Siemens AG v. Joseph Wunsch/Contactprivacy.com

Case No. D2006-1248

 

1. The Parties

The Complainant is Siemens AG, Munich, Germany, represented by Mьller Fottner Steinecke, Munich, Germany.

The Respondent is Joseph Wunsch, Panama City Beach, United States of America, and Contactprivacy.com, Toronto, Canada.

 

2. The Domain Name and Registrar

The disputed domain name <nokia-siemens-networks.com> is registered with Tucows, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by Siemens AG on September 27, 2006, duly authorized by Nokia Corporation against Contactprivacy.com. On September 29, 2006 the Center transmitted by email to Tucows, Inc. a request for registrar verification in connection with the domain name at issue. On October 3, 2006, Tucows, Inc. transmitted by email to the Center its verification response informing that the Respondent was not the current registrant of the domain name and providing the contact details for the administrative, billing, and technical contact. On October 9, 2006, the Center requested the Complainant by email to file an Amendment to the Complaint identifying both the privacy services provider and the individual/entity identified by the Registrar as Respondent. On October 17, 2006 the Complainant sent by email the requested Amendment. 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 October 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 9, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 17, 2006.

The Center appointed Eduardo Machado as the Sole Panelist in this matter on November 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

The Complaint is based on the SIEMENS German Registrations No. 2077533, No. 30075283 and No. 39946996, on the SIEMENS International Registration No. 504324, on behalf of Siemens AG, as well as on the NOKIA Community Registrations No. 000323386, No. 002398022 and No. 004035663, on the trademark NOKIA Canadian Registration No. TMA569939, on the trademark NOKIA United States Registration No. 269020, on the trademark NOKIA Finnish Registrations No. 224906 and No. 220980, on behalf of Nokia Corporation.

Siemens AG was established more than 150 years ago, is headquartered in Germany and is one of the world’s largest electrical engineering and electronic companies. It provides innovative technologies and comprehensive know-how to customers in 190 countries. The reputation associated with the Complainant’s mark is excellent by virtue of the quality of the Complainant’s goods and services.

Nokia Corporation was established around 140 years ago, is headquartered in Finland and is the word’s largest manufacturer of mobile telephones and. It is active in the areas of telecommunications, multimedia and mobile networks, and operates in more than 50 countries. The reputation associated with this company is excellent by virtue of the quality of its goods and services.

The Respondent registered the domain name <nokia-siemens-networks.com> on June 19, 2006. The domain name was registered on the exact day on which the joint venture between Siemens AG and Nokia Corporation was publicly and officially announced by the two companies.

On June 21, 2006, a warning letter was sent to the Respondent requesting that the domain name <nokia-siemens.netwoks.com> be cancelled or transferred to the Complainant. The Respondent did not answer to the warning letter. Instead, the Respondent used a domain Whois privacy service, so that the Whois database indicates “Contactprivacy.com” as Registrant of the disputed domain name. On August 9, 2006, a second warning letter was sent by the Complainant to Contactprivacy.com and forwarded by Contactprivacy.com to Joseph Wunsch. The Respondent did not answer the second warning letter.

Instead of responding to the warning letter, the Respondent added on the left hand of the top of the website the notice (“Want to purchase this domain??? Send me an offer”) in an attempt to force the two companies to make an offer for purchasing the domain name.

The Nokia Corporation’s authorization to the Complaint also includes an authorization to request the transfer of the contested domain name to the Complainant.

Documents attesting the allegations made by the Complainant are attached to the Complaint.

 

5. Parties’ Contentions

A. Complainant

(i) The Complainant argues that Siemens AG is the exclusive owner of the SIEMENS famous trademark and that NOKIA is the exclusive owner of the NOKIA famous trademark.

(ii) The Complainant argues that the disputed domain name <nokia-siemens-networks.com> is identical to its famous trademark SIEMENS, as well as to the Nokia Corporation’s famous trademark NOKIA. The addition of the word “networks” to the domain name has a descriptive character, as it merely refers to the future field of business in which Siemens AG and Nokia Corporation will cooperate.

(iii) The Complainant argues that the Respondent has never been one of the representatives or licensees of the companies Nokia and/or Siemens AG. Moreover, the Respondent does not own any mark similar to SIEMENS or NOKIA.

(iv) The Complainant argues finally that the Respondent act in bad faith because the Respondent must have been aware of the famous trademarks NOKIA and SIEMENS. The domain name <nokia-siemens.networks.com> was registered on the exact day the joint venture of SIEMENS AG and NOKIA CORPORATION was publicly and officially announced by the two companies. The Complainant asserts that it is clear that the Respondent has sought to take advantage of Internet users typing the address “www.nokia-siemens-networks.com”, when seeking to access information relating to the recently announced joint venture company between Siemens AG and Nokia Corporation.

B. Respondent

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

 

6. Discussion and Findings

Although the Respondent did not reply, it is proper for the Panel to examine the Complainant’s contentions having regard to both the Policy and the Rules.

The Panel notes that according to the Whois database, Contactprivacy.com is the current registrant of record. The Registrar indicated that Contactprivacy.com corresponds to a Whois privacy shield, and that the actual owner of the domain name is Joseph Wunsch. For this reason, the Panel finds it appropriate for Joseph Wunsch and Contactprivacy.com to both be named as the Respondent in this proceeding.

A. Identical or Confusingly Similar

The Panel finds that the Complainant is correct that the domain name <nokia-siemens-networks.com> is confusingly similar to the Complainant’s famous trademark SIEMENS, as well as to Nokia Corporation’s famous trademark NOKIA. The addition of the word “networks” to the domain name with the words “Nokia Siemens” is not sufficient to avoid a likelihood of confusion, mainly because “networks” indicates products of the Complainant’s field of business in which Siemens AG and Nokia Corporation will cooperate.

Thus, the Panel finds that the first element of the Policy has been met.

B. Rights or Legitimate Interests

The Complainant alleges that the Respondent has no rights or legitimate interest in the domain name at issue as enumerated in paragraph 4(c) of the Policy. The Complainant has made out a prima facie case that the Respondent lacks rights and legitimate interests in the domain name <nokia-siemens-networks.com>. The Respondent, by failing to file a Response, did nothing to dispute this contention nor to provide information as to its interests in using the disputed domain name. The fact that the Respondent has made every effort to divert consumers from the Complainant’s website by using a confusingly similar domain name, and the Respondent’s failure to point to any good faith use, leaves the Panel with the conclusion that the Respondent has no rights or legitimate interests in the disputed domain name.

Thus, the Panel finds that the second element of the Policy has been met.

C. Registered and Used in Bad Faith

The Panel notes the following particular circumstances of this case:

(i) the Complainant’s trademark has a strong reputation and is widely known;

(ii) the Respondent has provided no evidence whatsoever of any good faith use by it of the disputed domain name, and has not participated in this proceeding even though properly notified thereof;

(iii) the disputed domain name resolves to a commercial website, through which, the Respondent is misleading Internet users, and improperly capitalizing on the reputation and goodwill established by the Complainant over its history.

In light of these circumstances, the Panel makes the reasonable inference that the Respondent was aware of the Complainant’s famous trademark and trade name. The Panel finds that in registering the domain name, the Respondent likely intended to use the fact that the trademarks SIEMENS and NOKIA have a strong reputation throughout the world and had just announced a joint venture, in order to confuse consumers and to profit from such confusion. The Panel finds that the Respondent has registered and used the disputed domain name within the meaning of paragraph 4(b)(iv) of the Policy.

Thus, the Panel finds that the third element of the Policy has been 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 name <nokia-siemens-networks.com> be transferred to the Complainant.


Eduardo Machado
Sole Panelist

Dated: December 6, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1248.html

 

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