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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Directed Electronics, Inc. v. Registrant [456570] / Administraion Local

Case No. D2006-1335

 

1. The Parties

The Complainant is Directed Electronics, Inc., Vista, California, United States of America.

The Respondent is Registrant [456570], Administraion Local, Hong Kong, SAR of China.

 

2. The Domain Name and Registrar

The disputed domain name <directtechs.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 October 16, 2006. On October 17, 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 26, 2006, Moniker Online Services, LLC transmitted by email to the Center its verification response, which indicated that the domain name holder was different to that notified in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 30, 2006. The Center verified that the Complaint together with the amendment to the Complaint (hereafter referred to together as “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 November 2, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 22, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2006.

The Center appointed James A. Barker as the sole panelist in this matter on December 11, 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 markets car alarms and related products through a website at “www.directechs.com”. The Complainant registered that domain name on May 24, 2000. The Complainant promotes the website at that address to its dealers and installers, and provides links to it on its more general homepage at “www.directed.com”.

The Respondent registered the disputed domain name on May 23, 2002.

 

5. Parties’ Contentions

A. Complainant

The following contentions are summarized from the Complaint.

Identical or confusingly similar

The Complainant has common law rights in the trademark DIRECTECHS. Since as early as at least May 24, 2000, the Complainant has continually used the DIRECTECHS mark in connection with online services relating to the installation of its products.

The Complainant’s “www.directechs” website has been mentioned in industry magazines and installation forums, since at least 2003. (The Complainant attached evidence of such mentions to the Complaint.) As a result of such efforts, the website operated by the Complainant using the DIRECTECHS mark is widely recognized as the most reliable source for technical support and wiring diagrams for installation of car alarms.

The disputed domain name is confusingly similar to the trademark in which the Complainant has rights. The disputed domain name is almost identical to the Complainant’s DIRECTECHS mark. The confusion is heightened by the linking on the Respondent’s website to other websites that contain information relating to car alarms, which is in the same field of business as the Complainant’s.

Rights or legitimate interests

The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant asserts that there is no evidence that would demonstrate the Respondent’s rights or legitimate interests, within any of the circumstances set out in the Policy.

Bad faith

The Respondent registered and is using the disputed domain name in bad faith. The disputed domain name was registered or acquired primarily for the purpose of selling or renting or otherwise transferring the domain name registration to the Complainant or a competitor. The Respondent has intentionally attempted to attract Internet users for commercial gain, by creating a likelihood of confusion with the Complainant’s mark.

The Respondent has also used at least eight of the Complainant’s trademarks on the Respondent’s website. That use of those trademarks exacerbates the likelihood of confusion with the Complainant’s mark, as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.

B. Respondent

The Respondent did not reply to the Complainant’s contentions, nor make any other communication in connection with this case.

 

6. Discussion and Findings

For the Complainant to succeed and have the disputed domain name transferred to it, paragraph 4(a) of the Policy provides that Complainant must prove that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

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

The Complainant must prove all of these elements. These elements are discussed in turn as follows.

A. Identical or Confusingly Similar

Rights in a mark

The first issue is whether the Complainant “has rights” in a relevant mark. The Complainant claims that it has a common-law mark in DIRECTECHS. The implication from the Complaint is that the Complainant derives those rights because it has continuously operated a website at “www.directechs.com”.

Under the Policy, rights in a common law mark are clearly sufficient to establish that a complainant “has rights”. The question in this case is one of fact. Has the Complainant provided sufficient evidence to demonstrate those rights?

The Complainant’s evidence is, essentially, that it operates a website at “www.directechs.com”, and that this website is frequently visited and referred to in industry magazines and on-line forums. The Complainant’s evidence would have been stronger. It provides evidence of two magazine references to its website, both of which quote information provided by the Complainant itself. The references to “directechs” in those articles are, merely references to the Complainant’s website address at “www.directechs.com”. The Complainant also provides copies of exchanges on on-line chat forums, between people seeking information about the installation of car alarms. That evidence contains around eleven separate references to the Complainant’s website: six of which refer to information contained on “directechs” with the remainder referring to the full website address itself.

To establish common law rights under the Policy usually requires evidence of the distinctiveness of, or reputation associated with, the claimed mark. For a recent statement to this effect, see e.g. Richmond Associates, LLC v. hilltopmall, WIPO Case No. D2005-1198. In that case, the panel stated that, “The type of evidence generally required to support a finding of common law rights in a mark includes business sales figures, revenues, advertising expenditures, number of consumers served, and evidence that there is strong customer identification of the mark with Complainant’s goods or services.” To that list, might be added things such as advertising or promotional material.

In the present case the Complainant provides some evidence of reputation of DIRECTECHS. It would have been helpful had the Complainant provided further evidence on this point.

The Complainant states that its evidence is “a sample of such information”. But it is nevertheless up to the Complainant to provide sufficient evidence to make its case.

The evidence does provide some indication that DIRECTECHS has being used as a trademark. However, many of the references quoted by the Complainant are references to the Complainant’s website address itself. Establishment of a website address is plainly not the same thing as establishment of a trademark. And a small handful of references to a website address is not usually sufficient to establish reputation of the address as a mark. The Complainant’s best evidence is perhaps its quotes of Internet users, who refer e.g. to “the Directechs site” or information that they have obtained “from directechs” - although there not many examples are provided. Those quotes are some evidence of there being a commercial reputation associated with DIRECTECHS, as a marker of origin for commercial information provided by the Complainant.

On balance, the Panel accepts that such evidence is sufficient to establish that the Complainant has rights in DIRECTECHS as an unregistered mark, for the purpose of the Policy. The Complainant has at least provided some evidence of reputation in DIRECTECHS. Further, the Complainant’s contentions as to its common law rights have not been contested by the Respondent. In similar circumstances, other Panels have being willing to accept a complainant’s contentions of common law rights. (In relation to accepting contentions of rights in a common law mark in the face of a respondent’s default, see for example, Huge Fastigheter AB v. Netsol Ltd., WIPO Case No. DNU2005-0002.) A complainant’s discharge of its burden of proof will naturally be easier when the only evidence is its own.

Identical or confusingly similar

The disputed domain name is only relevantly different from the Complainant’s mark because it adds “t” between the naturally separate components of the domain name: “direct” and “techs”. That difference is trivial. With only that trivial difference, the disputed domain name is clearly confusingly similar to the Complainant’s mark.

The Complainant has established this first element. The Panel finds that the domain name is confusingly similar to the Complainant’s trademark.

B. Rights or Legitimate Interests

The Complainant claims that there is no evidence that the Respondent has rights or legitimate interests of a kind mentioned in paragraph 4(c) of the Policy.

The Respondent has made no response, and so has not itself established a right or legitimate interest. Neither has the Respondent made any other communication in relation to this case.

As such, the only evidence of the Respondent’s interest in the disputed domain name is the use as at the date of this decision. At that date, the disputed domain name reverted to a ‘portal’ website providing links to products and services relating to car alarms: the same field of business as the Complainant. Paragraph 4(c)(i) of the Policy provides that a respondent may demonstrate a right or legitimate interest if it has made a bona fide offering of goods or services. However, previous panels have found that the use of a domain name incorporating a complainant’s mark, in connection with a directory or ‘portal’ site, is not relevantly bona fide. (See recently e.g. Humana Inc. v. Cayman Trademark Trust, WIPO Case No. D2006-0073. The Respondent’s use in this case is relevantly similar.

The Complainant has therefore established this second element of the Policy. The Panel finds that the Respondent does not have rights or legitimate interests in respect of the domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b)(i)

The Complainant argues that the Respondent has registered and used the disputed domain name in bad faith under paragraph 4(b)(i) of the Policy. Paragraph 4(b)(i) provides that there is evidence of registration and use in bad faith in circumstances where a respondent has registered or acquired a domain name primarily for the purpose of selling, renting or otherwise transferring the domain name to the Complainant or a competitor.

The Complainant provides no evidence to support this contention, and so the Panel does not find it proved.

Paragraph 4(b)(iv)

The Complainant also argues that the Respondent has registered and used the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy. Paragraph 4(b)(iv) of the Policy provides that there is evidence of registration and use in bad faith in circumstances where a respondent has, by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website by creating confusion as to the source, sponsorship, affiliation or endorsement of the respondent’s website. The Complainant also contends that the Respondent has used a number of its registered trademarks on the Respondent’s website.

The Panel finds that the circumstances in paragraph 4(b)(iv) of the Policy are present in this case. The Respondent’s website, being a directory website, is apparently one that operates for some commercial gain. The Respondent’s website contains links to other sites concerning the installation of car alarms or related products: a defined and specific area of business. It is reasonable to infer that the Respondent of the Complainant, which operates in that field of business. The Respondent has also adopted a domain name that entirely incorporates the Complainant’s mark. As such, the inference can be drawn that the Respondent has intentionally sought to benefit from the creation of confusion with the Complainant’s mark.

The Complainant has established this third element. The Panel finds that the domain name was registered and 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, <directtechs.com>, be transferred to the Complainant.


James A. Barker
Sole Panelist

Dated: January 12, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1335.html

 

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