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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

General Motors Corporation v. DNS MANAGER

Case No. D2007-0279

 

1. The Parties

The Complainant is General Motors Corporation of Detroit, Michigan, United States of America, represented by Timothy G. Gorbatoff, United States of America.

The Respondent is DNS MANAGER, c/o Absolutee Corp. Ltd., of Hong Kong, SAR of China.

2. The Domain Name and Registrar

The disputed domain name <buickopen.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2007. On February 27, 2007, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the domain name at issue. On March 2, 2007, OnlineNic, Inc. d/b/a China-Channel.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.

In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 9, 2007. 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 March 13, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 2, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 5, 2007.

The Center appointed Anders Janson as the sole panelist in this matter on April 30, 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 Complainant is a corporation organized and existing under the laws of the state of Delaware, United States of America, with its principal place of business in Detroit, Michigan, United States of America. The Complainant is, as can be read out of the Complaint and the website “www.gm.com”, a global car manufacturing company founded in 1908. The Complainant employs about 284,000 people around the world. With global headquarters in Detroit, the Complainant manufactures its cars and trucks in 33 countries. In 2006, 9.1 million GM cars and trucks were sold globally under the following brands: Buick, Cadillac, Chevrolet, GMC, GM Daewoo, Holden, HUMMER, Opel, Pontiac, Saab, Saturn and Vauxhall.

The Complainant has asserted that the Complainant has used the BUICK trademark in connection with the sale of motor vehicles for more than one hundred years, and has used and registered the BUICK trademark in connection with a wide variety of goods and services, including golf articles. The BUICK Open has been an officially sanctioned PGA golf tournament since 1959. Complainant, acting through its BUICK Motor Division, has been the title sponsor of the BUICK Open golf tournament throughout the entire history of that globally televised event. Tiger Woods, the number one ranked golfer in the world, has been a BUICK spokesperson since 1999, and has drawn worldwide attention to the participation of BUICK in golf, including the BUICK OPEN golf tournament.

The Complainant has furthermore asserted that it holds numerous trademarks comprising the trademark BUICK and is the exclusive owner of the BUICK trademark, worldwide, and is not aware of any third party use or registration of the BUICK name in any country for any goods or services. The Complainant has, in the Complaint, put forward a large number of national and international registrations in various classes. Among the registrations put forward can be mentioned:

- United States registration no. 860907, dated November 26, 1968 evidencing 1904 as the date of first use of the BUICK trademark in connection with automobiles, renewed through November 26, 2008.

- United States Registration no. 1683886, dated April 21, 1992 evidencing 1975 as the date of first use of the BUICK trademark in connection with golf divot tools, golf tee holders and golf club bags, renewed through April 21, 2012.

- International registration no. 275550, dated January 20, 1997.

- International registration no. 1308208, dated August 28, 1999

- International registration no. 62/1927, dated November 30, 1996.

- International registration no. 1912/1990, dated March 31, 1996.

The Panel notes that the registration dates of the above-mentioned registrations predate the registration of the disputed domain name by the Respondent, which was on August 1, 2002.

The Respondent is DNS MANAGER, Absolutee Corp. Ltd, with a stated address in Hong Kong. No other information about the Respondent is available.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

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

- The Respondent has no rights or legitimate interests in respect of the disputed domain name;

- The disputed domain name was registered and is being used in bad faith; and

- The disputed domain name <buickopen.com> should be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

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

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

A. Identical or Confusingly Similar

The domain name concerned by this dispute is <buickopen.com>. The Complainant holds a number of national and international registered trademarks comprising the word BUICK. The Panel finds that the Complainant has established that BUICK is a widely-recognized and world famous trademark and that the trademark is distinctive. The Panel furthermore finds, based on the evidence put forward by the Complainant, that the event “BUICK Open” is a widely-known and well-recognized golf event. The disputed domain name contains the Complainant’s mark BUICK in its entirety, with the added suffix “open” and the generic and functional top level domain name “.com”.

In determining whether a domain name and a trademark are identical or confusingly similar, the gTLDs and ccTLDs that constitute the suffix shall be disregarded. Accordingly, the question is whether the addition of the suffix “open” makes the disputed domain name dissimilar to the Complainant’s registered trademarks or not. In several UDRP decisions, the panels have found that the fact that a domain name incorporates a complainant’s registered mark may be sufficient to establish identity or confusingly similarity for the purpose of the Policy (Oki Data Americas Inc v. the ASD Inc, WIPO Case No. D2001-0903 and CSC Holdings, Inc. v. Elbridge Gagne, WIPO Case No. D2003-0273).

The Panel finds that the term BUICK is the distinctive part of the disputed domain name. The generic term “open” adds to the overall impression of the disputed domain name the idea of an event sponsored by the Complainant. Accordingly, Internet users are more than likely to assume that the addition of the word “open” to the trademark BUICK signifies a website associated with the Complainant. The Panel finds that the addition of the suffix “open” does not diminish the similarity between the disputed domain name and the Complainant’s trademark. The disputed domain name must therefore be considered confusingly similar to the trademark BUICK.

The Panel holds that the Complainant has established the first element of the Policy, paragraph 4(a).

B. Rights or Legitimate Interests

The Respondent has not filed a Response. In these circumstances, when the Respondent does not have an obvious connection with the disputed domain name, the mere assertion from the Complainant that the Respondent has no right or legitimate interest may be enough to shift the burden of proof to the Respondent to demonstrate that such right and legitimate interest exists. The Respondent has not demonstrated or argued that he used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services or that any other rights or legitimate interests exist. Registration of a domain name in itself does not establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.

In conclusion, the Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name and has no obvious connection to it. The Panel therefore holds that the Complainant has established element (ii) of the Policy’s paragraph 4(a).

C. Registered and Used in Bad Faith

The Complainant has asserted that the Respondent’s registration and use of the disputed domain name has been made in bad faith. It is, according to the Complainant, evident that the Respondent, by registering and using the disputed domain name has intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of a product or service on the Respondent’s website or location.

Paragraph 4(b) states four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name. Paragraph 4(b)(iv) states that a circumstance indicating bad faith is using a domain to intentionally attempt to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of your website or location or of a product or service on your website or location.

Based on the evidence provided by the Complainant, the Panel finds it established that the website of the disputed domain name consists of a hyperlink collection where products and services of various kinds are marketed. The domain name, by these links, diverts Internet users to websites promoting and offering products and services of third parties, some in direct competition with the event sponsored by the Complainant. The Panel therefore find that the Respondent, by these actions, is trying to mislead consumers in order to attract them to other websites making them believe that the websites behind those links are associated or recommended by the Complainant. Furthermore, the Respondent cannot, in this Panel’s view, have been unaware of the trademark BUICK due to its market presence in China and the registered trademarks, both in the Latin and the Chinese alphabet.

The Panel finds, with reference to the above-mentioned and the proof provided by the Complainant, that the Respondent used the disputed domain name in bad faith, hence having intentionally attempted to attract, for commercial gain, Internet users to web-sites, by creating a likelihood of confusion with Complainant’s mark as to the source.

The Panel therefore concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to 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 name, <buickopen.com>, shall be transferred to the Complainant.


Anders Janson
Sole Panelist

Dated: May 9, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0279.html

 

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