юридическая фирма 'Интернет и Право'
Основные ссылки










Яндекс цитирования

Рассылка 'BugTraq: Закон есть закон'





Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Hunter’s Specialties, Inc. v. Hong Kong Names LLC.

Case No. D2006-1250

 

1. The Parties

The Complainant is Hunter’s Specialties, Inc., Cedar Rapids, Iowa, United States of America, represented by McKee, Voorhees & Sease P.L.C., United States of America.

The Respondent is Hong Kong Names LLC, Hong Kong, SAR of China.

 

2. The Domain Name and Registrar

The disputed domain name <huntersspecialties.com> (herein the “domain name in dispute”) is registered with Moniker Online Services LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2006. On September 29, 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 October 11, 2006, Moniker Online Services, LLC, transmitted by email to the Center its verification response. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 17, 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 October 25, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 14, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2006.

The Center appointed J. Nelson Landry 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 Complainant is Hunter’s Specialties, Inc., a company based in Cedar Rapids, Iowa, United States of America, a large manufacturer of hunting accessories. The Complainant is the current owner of the US trademark HUNTER’S SPECIALTIES (herein the “Trademark”) registered in 1997 in the United States of America pursuant to an application filed in 1994 in association with hunter’s camouflage equipment and accessories. The Trademark registration mentions September 15, 1977, as the date of first use of the Trademark. The Complainant’s products can be found at sporting goods dealers, large chain stores and through mail order and online catalogs on its website at “www.hunterspec.com”. As it appears from the company history on the website, activities commenced with one product, multi-color camouflage make-up in a pocketsize compact design in 1984 with additional products introduced in 1995 and 1998. The Company continued to grow, with a constant development that included scents and scent elimination, and then the acquisition of Wayne Carlton Calls in 1998 and of Johnny Stewart Wildlife Calls in 1999. According to the company website, Hunter’s Specialties now manufactures over 700 products.

The Respondent is Hong Kong Names LLC of Hong Kong. The Respondent is not known to have any business neither under Hunter’s Specialties nor in the field of activities of the Complainant.

According to Exhibit 1, WHOIS information, the domain name in dispute was registered by the Respondent on March 15, 2006. The evidence is silent as to any use or website in operation under the domain name in dispute before 2006. The Complainant has never authorized Respondent to utilize its Trademark and the Respondent has no known relationship association or affiliation with the Complainant. Furthermore, the Respondent has not now nor has ever been known by “Hunter’s Specialties”.

At the time of the filing of the Complaint, Respondent’s “www.huntersspecialties.com” website provided numerous links to various companies’ hunting accessories related websites, including distributors and competitors of the Complainant. These links are directed to the same types of products that the Complainant manufactures and sells under its Trademark, and these links are directed to the same types of consumers as those to whom the Complainant sells its products under its Trademark.

 

5. Parties’ Contentions

A. Complainant

The Complainant, founded in 1977, contends to be the world’s largest manufacturer of hunting accessories with a product line of about 700 products found at sporting goods dealers, large chain stores and through mail order and online catalogs. All these products are manufactured and sold under the Complainant’s Hunter’s Specialties Trademark registered in the United States in 1997.

The Complainant has registered and used a domain name <hunterspec.com> which is a shortened version of its HUNTER’S SPECIALTIES Trademark.

The Complainant further represents that its Trademark is now registered and has achieved an incontestable status and that the whole of the Trademark is incorporated in the Respondent’s domain name except for the apostrophe in the Trademark and the space between the terms “hunters” and “specialties”. Consequently, the domain name in dispute is essentially identical or at least confusingly similar with the Complainant’s Trademark. There is essentially no difference in sight, sound or meaning between the domain name in dispute and the Trademark.

The Complainant alleges that choice of the domain name in dispute by the Respondent was done to attract a flow of Internet users who mistyped or did not know the exact domain name for the Complainant’s website.

The Complainant states that the Respondent has never demonstrated any rights or legitimate interests in the domain name in dispute. Not only did the Complainant never authorize Respondent to utilize its Trademark nor there is any known relationship association or affiliation with the Complainant, the Respondent has not now or ever been known by the terms “hunter’s specialties”. Since the Respondent is not offering any goods or services of its own or in connection with the domain name in dispute, according to the Complainant, Respondent’s gain appears to solely hinge on earning “click through” revenues via attracting Internet users by misleading them to believe they are visiting the Complainant’s website. This activity does not constitute legitimate non-commercial or fair use of a domain name.

The Complainant represents that the registration of the domain name in dispute by the Respondent and its use by the Respondent have both been in bad. The Complainant represents that the registration of the domain name in dispute was for no apparent purpose other than to trade on the goodwill of the Complainant’s Trademark and confuse Internet users with a “click through” traffic revenue system. The Complainant contends that the Respondent’s intention and activities are clear from its website under the domain name in dispute which provides numerous links to various companies’ hunting accessories-related websites. Furthermore, Respondent uses the website “www.hitfarm.com” which tracks the number of users that visit a website and thus insures that Respondent receives monetary benefit from such volume of visits. See Sociйtй Air France v. Virtual Dates, Inc., WIPO Case No. D2005-0168; Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Staples, Inc., Staples The Office Superstore, Inc., Staples Contract and & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537; Toyota Motor Sales U.S.A. Inc. v. Tony Mwangi, WIPO Case No. D2003-0623; Disney Enterprises, Inc. v. John Zucarini, Cupcake City and Cupcake Patrol, WIPO Case No. D2001-0489.

Furthermore, the Complainant contends that the Respondent either clearly knew or at least should have known of HUNTER’S SPECIALITIES Trademark by reason of not only its uncontestable status as a registered trademark, but also by reason of Complainant’s fame as the world’s largest manufacturer of hunting accessories.

The Complainant states that it cannot be a coincidence that the Respondent, in such a context, adopted a domain name that is identical to the Trademark, to the exception of the absence of apostrophe and space in the Trademark. Again see Sociйtй Air France v. Virtual Dates, Inc., WIPO Case No. D2005-0168; Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Staples, Inc., Staples The Office Superstore, Inc., Staples Contract and & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537; Toyota Motor Sales U.S.A. Inc. v. Tony Mwangi, WIPO Case No. D2003-0623; Disney Enterprises, Inc. v. John Zucarini, Cupcake City and Cupcake Patrol, WIPO Case No. D2001-0489.

Finally, according to the Complainant, a further confirmation of registration of the domain name in dispute made in bad faith is in the fact that the Respondent is using a system that registers domain names based on a determination of commercial interest, perceived value or projected traffic without regard to whether the domain name includes or uses the trademark of another. The Complainant relies on at least two prior UDRP decisions in this respect. See Patelco Credit Union v. Hong Kong Names LLC, WIPO Case No. D2006-0202; Chicago Whit Sox, Ltd. d/b/a The Chicago White Sox Baseball Club v. Hong Kong Names LLC, NAF Case No. FA0602000642531.

B. Respondent

The Respondent did not provide any response nor evidence to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements in order for a domain name to be cancelled or transferred:

(i) The domain name registered by the respondent 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 interest in respect of the domain name; and

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

Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has established its rights in the HUNTER’S SPECIALTIES Trademark which has been registered in the United States of America since 1997, which Trademark has substantial goodwill associated to it, pursuant to substantial and progressive use since 1977 in association with about 700 products, namely hunting accessories it manufactures. The Trademark rights were assigned to the Complainant during that past period as it appears from the registration.

The domain name in dispute differs from the Trademark simply by the absence of the apostrophe in “hunter’s”, the space between “hunters” and “specialties” and the presence of “.com”. In all other respects, the Trademark is incorporated in its entirety in the domain name in dispute and constitutes a solid indication that the domain name is confusingly similar to the Trademark. It is clear from numerous UDRP decisions that these slight differences do not deter from a finding that the domain name in dispute is confusingly similar with the Trademark of the Complainant.

Accordingly, the Panel finds that the first criterion under the Policy has been met.

B. Rights or Legitimate Interests

The evidence which is not challenged indicates that the Complainant is the world’s largest manufacturer of hunting accessories operating under its Trademark and the Respondent has registered the domain name in dispute in this context. Furthermore, the Complainant has never authorized the Respondent to utilize its Trademark nor to register the domain name in dispute. There has never been any known relationship, association or affiliation of the Respondent with the Complainant and the Complainant has stated that the Respondent has never been known by the terms “Hunter’s Specialties”, and has registered the domain name in dispute to generate “click through” revenues from Internet users mislead by the domain name in dispute.

The Complainant has raised a prima facie case of lack of rights or legitimate interests in the domain name and the Respondent has not answered nor rebutted this contention that the Panel finds substantiated and convincing. Therefore the Panel finds that the Respondent has no rights or legitimate interest in the domain name in dispute.

Accordingly, the Panel finds that the second criterion has been met.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you [respondent] have engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to your [respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your [respondent’s] website or location or of a product or service on your website or location.

Considering the substantial use of the Trademark, the considerable number of products sold and promoted in association therewith and the incorporation of the whole Trademark in the domain name in dispute, it appears inconceivable to this Panel that the Respondent was not aware of the Complainant’s activities and line of products sold under its Trademark. According to the evidence, unchallenged, the Respondent is using a system that registers domain names based on a determination of commercial interest. This is substantiated by at least two prior improper registrations of domain names by this Respondent which have been challenged and ordered to be transferred. See Patelco Credit Union v. Hong Kong Names LLC, WIPO Case No. D2006-0202; Chicago Whit Sox, Ltd. d/b/a The Chicago White Sox Baseball Club v. Hong Kong Names LLC, NAF CaseNo. FA0602000642531.

It is clear to and the Panel finds that the domain name in dispute has been registered in bad faith.

The domain name in dispute which is confusingly similar has, according to the evidence, no apparent purpose other than to trade on the goodwill of the Complainant’s Trademark and confuse Internet users through a “click through” traffic revenue system. Said evidence also indicates that Respondent uses the website which tracks the number of users that visit Respondent’s website and thus generates monetary benefit for the Respondent. The two earlier UDRP decisions cited above wherein the Respondent was also respondent and the domain names were transferred, and the other UDRP decisions cited by the Complainant, support the contention that the Respondent’s use of a domain name in dispute can only be in bad faith.

The Panel finds that the domain name in dispute has been used in bad faith by the Respondent.

Accordingly, the Panel finds that the third criterion has been met.

 

7. Decision

The Panel concludes that:

(a) the domain name <huntersspecialties.com> is confusingly similar to the Complainant’s Trademark; and

(b) the Respondent has no rights or legitimate interests in the domain name in dispute; and

(c) the domain name in dispute has been registered and is being used in bad faith.

Therefore, in accordance with paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <huntersspecialties.com> be transferred to the Complainant.


J. Nelson Landry
Sole Panelist

Dated: December 7, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1250.html

 

На эту страницу сайта можно сделать ссылку:

 


 

На правах рекламы:

Произвольная ссылка:





Уважаемый посетитель!

Вы, кажется, используете блокировщик рекламы.

Пожалуйста, отключите его для корректной работы сайта.