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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Advanced Micro Devices, Inc v. Chapar Rasaneh

Case No. D2006-1249

1. The Parties

The Complainant is Advanced Micro Devices, Inc, Austin, Texas, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.

The Respondent is Chapar Rasaneh, Islamic Republic of Iran.

2. The Domain Names and Registrar

The disputed domain names <amdeurope.com> and <amdiran.com> are registered with BulkRegister.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2006. On September 28, 2006, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the domain names at issue. On October 2, 2006, BulkRegister.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 October 3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 23, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 27, 2006.

The Center appointed Adam Samuel as the sole panelist in this matter on November 14, 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 has existed since 1969. It manufactures and distributes computer hardware and software, semiconductor devices, microprocessor chips and related goods and services. It entered the random access memory market in 1975. It owns trademark registrations in the name AMD in the United States of America and elsewhere. For example, the Complainant registered AMD as a Word Mark in the United States of America in 1987. The Respondent registered the domain names in issue here in February 2004 years after the registration of the Complainant’s trademark in the name AMD.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the AMD mark has no meaning or significance other than to identify the Complainant’s products and distinguish them from those of its competitors. By virtue of the Complainant’s long use, advertising, and promotion, the AMD Marks have become well-known and famous throughout the world signifying the Complainant and the computer hardware and software, semiconductor devices, microprocessor chips and related goods and services it offers.

The Complainant’s AMD marks and the goodwill symbolized by them are exceedingly valuable corporate assets of the Complainant. As a result of its registration and long use, the Complainant has established strong rights in the AMD marks.

The Respondent is not affiliated with or related to the Complainant in any way, nor is the Respondent licensed by the Complainant to use the AMD marks. In or around February 2004, long after the Complainant’s adoption, use and registration

of the AMD marks, the Respondent registered the Domain Names.

The Domain Names are confusingly similar to the Complainant’s AMD marks because the Domain Names incorporate the entirety of the AMD Marks in combination with geographic terms.

The Respondent is not commonly known by the Domain Name, nor has the Respondent acquired any trademark or service mark rights in the AMD marks. The Complainant has not licensed or otherwise permitted the Respondent to use the AMD marks or to apply for or use any domain name incorporating the AMD marks.

The Respondent does not currently operate any web site located at “www.amdeurope.com”, and the web site located at “www.amdiran.com” appears to require entry of a password in order to access the site.

The Respondent, however, has previously used the <amdeurope.com> domain name in connection with a website for “AMDElectronics” which falsely purported to be an “AMD Authorized distributor”.

Upon information and belief, the Respondent previously used the <amdiran.com> domain name to operate a similar website for “AMDElectronics” which also falsely purported to be an “AMD Authorized distributor”.

Given the Respondent’s lack of rights in the AMD marks and lack of affiliation with the Complainant, the Respondent has no rights or legitimate interests in the Domain Names.

Long after the Complainant’s adoption, use and registration of its AMD marks, the Respondent began making unauthorized use of the AMD marks by registering and using the Domain Names.

Based on the fame of the AMD marks, the Respondent necessarily has actual knowledge of the Complainant’s rights. In addition to actual knowledge, the Respondent has constructive notice of the Complainant’s trademark rights in the AMD Marks, particularly in light of the facts that both the Registrar and the .com gTLD registry are located within the United States of America.

Because the Respondent had knowledge of the Complainant’s trademark rights in the AMD marks, the Respondent could not have registered the Domain Names with the intention of using it legitimately. The Respondent obtained the Domain Names in order to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s web pages by creating a likelihood of confusion with the AMD marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s web sites.

As evidenced by the Complainant’s long continuous use and wide reputation in, the AMD marks, it is not possible to conceive of a plausible circumstance in which the Respondent could legitimately use the <amdeurope.com> and <amdiran.com> domain names.

The facts that (i) the Complainant’s AMD marks have a strong reputation and are famous and widely known throughout the world; (ii) the Respondent had constructive and probable actual notice of the Complainant’s rights in its famous AMD marks at the time it registered the Domain Names; (iii) the Respondent’s registered and used the Domain Names to intentionally divert traffic away from the Complainant’s “www.amd.com” web site; and (iv) it is not possible to conceive of any plausible or contemplated active use by the Respondent that would not be illegitimate or unlawful, all constitute evidence of the registration and use of the Domain Names in bad faith in accordance with Paragraph 4(a)(iii) of the Policy.

B. Respondent

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

6. Discussion and Findings

Under the Policy, the Complainant must prove that:

(i) the domain names are 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 names; and

(iii) the domain names have been registered and are being used in bad faith.

A. Identical or Confusingly Similar

The domain names in issue consist of the Complainant’s registered trademark AMD and the continent “Europe” and the country “Iran” added onto it. The letters AMD have no independent meaning.

The addition of Europe to a trademark name has consistently been held not to prevent a domain name being confusingly similar to the trademark in question. For example, in Allianz AG v. Marian Dinu, WIPO Case No. D2006-0318, the Panel said:

“The Domain Name <europealliance.com> combines a geographical indication and the English translation of Complainant’s trademark ALLIANZ. The suffix “alliance” is phonetically and acoustically similar to Complainant’s trademark. The Panel thus finds that the translation of Complainant’s trademark does not avoid a likelihood of confusion. Likewise, the prefix “europe” does not render the disputed Domain Name significantly different from Complainant’s ALLIANZ trademark. The mere addition of a generic word to a famous trademark is not sufficient to avoid confusion (see Chanel, Inc. v. Estco Technology Group, WIPO Case No. D2000-0413). ALLIANZ is a very well-known trademark throughout the world and the Domain Name is most likely to be held as Complainant’s pan-European website.”

Essentially, a country or continent is a generic descriptive word which may have the added complication of suggesting that the division of the company related to that country or continent is indicated by the name.

For these reasons, the Panel concludes that the domain names in issue are both confusingly similar to the trademark AMD in which the Complainant has rights.

B. Rights or Legitimate Interests

The Respondent is not called “AMD” and does not appear to trade under that name. There is no evidence that the owner of the trademark in question, the Complainant, has authorized the Respondent to use the trademark. The Respondent has never asserted any rights or legitimate interests in the name. For these reasons, on the basis of the evidence in case file, and in view of the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the domain name.

C. Registered and Used in Bad Faith

Respondent does not currently operate any web site located at “www.amdeurope.com”, and the web site located at “www.amdiran.com” appears to require entry of a password in order to access the web site. However, as recently as May this year, both websites showed the Respondent using them to sell AMD products using the trade name AMDElectronics. The website “www.amdeurope.com” indicated that this firm was an “AMD Authorized distributor” alongside the AMD logo.

The Respondent has not contradicted the Complainant’s assertion that the Complainant never authorized the Respondent to use the Complainant’s name. So, one must assume this to be true.

Essentially, as late as May this year, the Respondent was using the Complainant’s name to indicate falsely that it was an authorized distributor of AMD. The websites concerned show that the Respondent knew a great deal about AMD and must have realized that it had trademark rights in the name AMD. Yet, it continued to use that trademark while knowingly incorrectly describing its “relationship” with the Complainant.

Knowingly breaching someone else’s trademark rights in order to divert business to oneself is in itself evidence of bad faith. As the Panel said in The Sportsman’s Guide, Inc. v. JoyRide WIPO Case No. D2003-0153:

“The Respondent’s use of confusingly similar domain names in order to profit from the confusion of Internet users was a parasitic use. The Respondent intentionally created a likelihood of confusion with the Complainant’s catalogue sales trademark by using the disputed domain names, and did so in order to attract Internet users through the Respondent’s website for its own commercial gain. The fact that Internet users were lured through rather than to the Respondent’s site does not lessen the bad faith present on these uncontested facts. Paragraph 4 (b) of the Policy is not exhaustive on what circumstances may be evidence of registration and use of a domain name in bad faith. The registration and use of domain names which the Respondent had reason to know were confusingly similar to the Complainant’s trademark, in order to divert the Complainant’s would-be customers down a route that would trigger a commission for the Respondent, was manifestly below the standards of acceptable commercial behaviour. Such use was in bad faith, notwithstanding the fact that the re-routed visitors probably never knew that they had not reached the Complainant’s site directly. The Respondent’s success in misleading the public is not the measure against which its good or bad faith should be judged.

Bearing in mind the use to which the domain names have been put, it is hard to imagine that the Respondent did not register the domain name knowing of the Complainant’s trademark rights. Describing falsely or hinting at a distributorship relationship which does not exist in fact is further evidence of bad faith. This “distributor” description on the “europe” site is also consistent with the view that the domain names were selected to give the false impression that the Respondent had a distributorship arrangement with the Complainant covering the relevant geographic areas.

Preventing access to a website does not prevent registration and use from being in bad faith. Otherwise, any Respondent to a domain name dispute would temporarily block access to the websites reached through the domain names in issue and wait until the conclusion of the case before returning to the activity originally complained about.

For all these reasons, the Panel concludes that the domain names were registered and are being used in bad faith.

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 names, <amdeurope.com> and <amdiran.com> be transferred to the Complainant.


Adam Samuel
Sole Panelist

Date: November 27, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1249.html

 

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