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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Brink’s Network Inc. v. Sirus Networks.com

Case No. D2007-0226

 

1. The Parties

Complainant is Brink’s Network, Inc., Wilmington, Delaware, United States of America; represented by Thompson Coburn LLP, United States of America.

Respondent is Sirus Networks.com, Salisbury, North Carolina, United States of America.

2. The Domain Names and Registrar

The disputed domain names <brinksdealer.net>, <brinksinfo.com>, and <getbrinks.com> (collectively, the “Domain Names”) are registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 15, 2007. On February 19, 2007, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain names at issue. On February 19, 2007, Tucows transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Names Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Names Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Names Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 13, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 21, 2007.

The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on May 7, 2007. 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 following uncontested facts are summarized from the Complaint.

Complainant has established a family of BRINKS marks and has been granted numerous registrations for such marks, covering safes, security systems, security transportation and security system monitoring services, and other related goods and services. In the United States of America, Complainant owns seventeen (17) registrations for such marks, seven (7) of which are incontestable.

Respondent registered the disputed Domain Names on May 5, 2006.

 

5. Parties’ Contentions

A. Complainant

Complainant contends the following:

Complainant has established a well-known family of BRINKS marks and has been granted numerous registrations for such marks, covering safes, security systems, security transportation and security system monitoring services, and other related goods and services. Complainant maintains an active presence on the Internet, primarily through its websites “www.brinks.com” and “www.brinksinc.com”, where it promotes many of its goods and services in connection with the BRINKS mark. Complainant and its related companies also own other domain names that contain the term BRINKS, including <brinkshomesecurity.com>.

Respondent’s Domain Names are confusingly similar to Complainant’s BRINKS mark, as they combines Complainant’s famous mark BRINKS, in its entirety, with the non-distinctive and descriptive terms “get”, “dealer”, and “info”. These terms are clearly descriptive when used in connection with the BRINKS mark.

Respondent does not have any rights or legitimate interests in the Domain Names, which were first registered on May 5, 2006, more than 145 years subsequent to when Complainant first used its BRINKS mark, nearly 25 years after Complainant first used its BRINKS mark in connection with home security systems, and approximately 10 years after Complainant first used its BRINKS mark in connection with safes. Each website associated with the Domain Names also contained numerous links to the websites of Complainant’s competitors, or to other websites that provided information about the goods and/or services of such competitors. For example, the website located at “www.brinksdealer.net” provided links to “www.patriotsafe.com”, www.911safes.com and securitybase.com; the website located at brinksinfo.com provided links to “www.adt.com”, “www.greatalarms.com” and “www.valuesafes.com”; and the website located at <getbrinks.com> provided links to “www.adt.com”, “www.greatalarms.com” and “www.brownsafe.com”. Each of these websites offers safes and/or home security systems competitive with those of Complainant for sale. Because Respondent’s Domain Names are identical or confusingly similar to Complainant’s mark, and because Respondent is doing nothing more than offering sponsored links, Respondent is not using the Domain Names in connection with a bona fide offering of goods or services. Nor is such use a legitimate non-commercial or fair use.

Respondent registered the Domain Names to intentionally attract Internet users to its websites by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites. Given the fame and notoriety of the BRINKS trademark, as further discussed above, it is inconceivable that Respondent registered the Domain Names in good faith and without knowledge of Complainant’s BRINKS mark, in view of the fact that this mark is well-known throughout the United States of America.

Respondent’s registration and use of the Domain Names were in bad faith because Respondent intentionally attempted to attract members of the public who had an interest in purchasing or obtaining additional information about BRINKS goods and services, and providing links to websites advertising goods and services competitive with those of Complainant. Respondent presumably obtained a commercial benefit by providing sponsored results on its site, as operators of websites of this type generally receive revenue for each click-through by on-line consumers.

B. Respondent

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

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, Complainant must prove that:

(i) The domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

(iii) The domain names have been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that Complainant has established rights in the BRINKS trademark, by virtue of the registrations with the U.S. Patent and Trademark Office. The Panel further finds that the Domain Names is confusingly similar to Complainant’s mark. Each of the Domain Names incorporates Complainant’s mark in full and adds the words “dealer”, “get”, or “info”, which are descriptive words. It is well established that the mere addition of a descriptive word does not reduce the degree of confusing similarity. See e.g. Aventis Pharma SA v. Valicenti, WIPO Case No. D2005-0037; F. Hoffman-La Roche AG v. Direct Response Marketing Ltd, WIPO Case No. D2006-1370.

The Panel, therefore, finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Names, among other circumstances, by showing any of the following elements:

(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Names or a name corresponding to the Domain Names in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Names, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited, WIPO Case No. D2001-0122 (March 26, 2001).

Respondent, who filed no response in this proceeding, has not invoked any of the circumstances of Policy, paragraph 4(c) to suggest any “rights or legitimate interests” in respect of the Domain Names. The record does not contain any evidence that Respondent has been commonly known by the Domain Names.

Respondent’s use of the Domain Names to provide links to websites offering goods and services in competition with those of Complainant constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. There are numerous prior decisions under the Policy holding that the unauthorized appropriation of another’s trademark in one’s domain name and the commercial use of the corresponding website do not confer rights or legitimate interests upon the owner of such a domain name. See, e.g. America Online, Inc. v. Xianfeng Fu, WIPO Case No. D2000-1374 (“it would be unconscionable to find that a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”); Microsoft Corp. v. Gioacchino Zerbo, WIPO Case No. D2005-0644.

Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides several nonexclusive circumstances that provide evidence of bad faith registration and use of a domain name, including evidence that (i) respondent acquired a domain name for the purpose of selling the domain name to a trademark owner for valuable consideration in excess of the respondent’s out-of-pocket expenses; (ii) respondent intentionally attempted to attract Internet users to the respondent’s website for commercial gain by creating a likelihood of confusion; or (iii) the domain name was registered primarily for the purpose of disrupting the business of a competitor.

The Panel finds that Respondent registered the Domain Names to intentionally attract Internet users to its websites by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Given the widespread fame and notoriety of the BRINKS trademark, the Panel finds that in all likelihood, Respondent registered the Domain Names with knowledge of Complainant’s BRINKS mark. See Nike, Inc. v. B.B. de Boer, WIPO Case No. D2000-1397 (finding it “very unlikely, if not nearly impossible” that the respondent was unaware of the NIKE trademark when it registered the nike-shoes.com domain name). Using Complainant’s mark, Respondent linked to other websites providing goods and services in competition with those of Complainant. The Panel finds that in all likelihood, Respondent attempted to gain a commercial benefit by providing such links on its sites.

For this reason, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy.

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, <brinksdealer.net>, <brinksinfo.com>, and <getbrinks.com> be transferred to the Complainant.


Maxim H. Waldbaum
Sole Panelist

Dated: May 21, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0226.html

 

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