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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Neteller Plc. v. Dalene Lupinek

Case No. D2006-1301

 

1. The Parties

The Complainant is Neteller Plc., Alberta, United Kingdom of Great Britain and Northern Ireland, represented by Brownlee LLP, Barristers & Solicitors, Canada.

The Respondent is Dalene Lupinek, Annapolis, Indiana, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <netellergroup.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2006. On October 9, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On October 10, 2006, eNom 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 24, 2006. The Complainant submitted a supplement filing on November 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 13, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 14, 2006.

The Center appointed Peter G. Nitter as the sole panelist in this matter on November 22, 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 corporation which provides financial services online. The financial services facilitate online purchases using what is known as an “e-wallet”. An “e-wallet” is an electronic account which any individual member can obtain through an application process and then access online. Certain online merchants, including online gaming services, accept payments from such accounts and many accept the Complainant’s brand of e-wallet.

The Complainant has applied for or registered both the trademark NETELLER and NETELLER.COM in several jurisdictions, including in the United States of America and the European Union. The Complainant has also registered the domain name <neteller.com>.

The Respondent registered the domain name <netellergroup.com> on March 4, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant alleges that:

The domain name <netellergroup.com> is confusingly similar to the NETELLER and NETELLER.COM trademarks in which the Complainant has rights. The Complainant’s rights precede the Respondent’s registration of <netellergroup.com>.

The contested domain name is nearly identical to the Complainant’s trademark NETELLER.COM with the mere addition of the word “group”. The use of the word “group” is a common way to describe a business organization with multiple affiliated corporate components. The mere addition of a generic term to the Complainant’s mark is not relevant when considering if a domain name is identical or confusingly similar to a trademark according to paragraph 4(a) of the Policy. Additionally, the term “Neteller group” is currently used by the Complainant and has been in use by the Complainant since at least May 2004. Moreover, the addition of the generic top level suffix <.com> does not effect the determination of whether the domain name is confusingly similar to a trademark. Thus the contested domain name is confusingly similar to the Complainant’s marks.

The Respondent has not been granted any right to use the Complainant’s trademarks and has not used the disputed domain names for any apparent purpose. The Complainant knows of no reason why the Respondent would have any rights to or legitimate interests in the contested domain name.

The Respondent has registered the domain name with the fame of the NETELLER trademark in mind. The Complainant cannot conceive of any legitimate, fair or good faith reason for the registration of the disputed domain name. Further according to UDRP practice, passive use of a domain name can also be considered to constitute bad faith. There is no way the Respondent could use the disputed domain name in a way that would not infringe the Complainant’s trademarks. Additionally, the Complainant has evidence indicating that the real registrant has appropriated the identity of Dalene Lupinek, without her written consent for the purpose of concealing the identity of the real registrant. Therefore, the domain name <netellergroup.com> is registered and used in bad faith.

Based on the above assertions, the Complainant requests that the disputed domain name be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has registered the trademark NETELLER in several jurisdictions and in the Panel’s view, the trademark must be considered to be well-known, at least among Internet users. This follows from the evidence submitted by the Complainant.

The domain name at issue is not identical to the Complainant’s trademarks, and the question is therefore whether there is a confusing similarity between the disputed domain name and the Complainant’s trademarks. The domain name at issue consists of the trademark of the Complainant NETELLER, with the addition of the word “group” and the generic top level domain denominator “.com”.

Previous Panel decisions under the UDRP have concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark. Thus, the first issue only concerns the part of the disputed domain name which consists of “netellergroup”.

Further, the mere addition of a common or generic word such as “group” to a registered trademark has consistently been deemed insufficient to avoid confusing similarity between the domain name and the Complainant’s trademark. This follows from: PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696; PepsiCo, Inc. v. Diabetes Home Care, Inc. and DHC Services, WIPO Case No. D2001-0174 and Parfums Christian Dior v. 1 Netpower, Inc., WIPO Case No. D2000-0022. The only relevant element of the disputed domain name is thus identical to the Complainant’s trademark NETELLER.

Based on the above, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademarks, in accordance with paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Respondent has, according to the Complainant, not been granted a license or right to use the mark in any manner by the Complainant and is not commonly known by the mark, paragraph 4(c)(ii) of the Policy.

The Respondent has not filed any Response arguing that it has rights to or legitimate interests in the disputed domain name.

None of the Complainant’s assertions have thus been contested by the Respondent. In the event that any such connection or affiliation existed, it would be easy for the Respondent to substantiate this, while it is generally difficult for a Complainant to prove the negative that Respondent has no such rights. For this reason, previous decisions under the UDRP have in the event of a Respondent’s default found it sufficient for Complainant to make a prima facie showing of its assertion.

In accordance with the above, there is no evidence allowing the Panel to conclude that the circumstances listed in paragraph 4(c) of the Policy apply to the Respondent’s situation. Based on the evidence presented to it, the Panel further finds that the Respondent has directed the domain name at issue to a place-holder page which is supplied by the domain name registration service provider. The Panel finds that this constitutes a mere passive holding of the domain name. According to UDRP practice such a passive holding demonstrates a lack of rights or legitimate interests. See, e.g., Am. Home Prod. Corp. v Malgioglio, WIPO Case No. D2000-1602.

Hence, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name, and the prerequisites in paragraph 4(a)(ii) of the Policy are therefore fulfilled.

C. Registered and Used in Bad Faith

The last element for the Complainant to demonstrate is that the domain name has been registered and is being used in bad faith, in accordance with paragraph 4(a)(iii) of the Policy.

The contested domain name was registered by the Respondent on March 4, 2006. Considering the number of users of the Complainant’s services, the Panel finds it highly unlikely that the Respondent was not familiar with the trademark NETELLER at the time of registration. The Complainant has used the name NETELLER since December of 2000, and has an extensive presence in several countries including the United States of America where the Respondent has listed a contact address. The Panel thus finds that the contested domain name was registered in bad faith.

According to paragraph 4(a)(iii) of the Policy, the domain name at issue must also have been used in bad faith for the Panel to find that the conditions in paragraph 4(a)(iii) are fulfilled.

As already mentioned the Respondent is not actively using the contested domain name. According to UDRP practice this does not, however, prevent the finding of bad faith. This is reflected in the WIPO Overview Paragraph 3.2 and in UDRP practice. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows WIPO Case No. D2000-0003. The Panel is required to examine all the circumstances of the case to determine if the domain name is being used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.

In this case, the trademark contained in the contested domain name is, in the Panel’s view well-known, as already mentioned. Additionally there is no response from the Respondent. The Panel further finds it evidenced that the Respondent has tried to conceal its identity by using the identity of Dalene Luninek, without her consent.

Based on the above the Panel finds it impossible to conceive any good faith use of the domain names.

The Panel thus finds that the contested domain is 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 name, <netellergroup.com> be transferred to the Complainant.


Peter G. Nitter
Sole Panelist

Dated: December 6, 2006.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1301.html

 

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