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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Seanix Technology, Inc. v. N.A., Domain Administrator
Case No. D2007-0384
1. The Parties
The Complainant is Seanix Technology, Inc., Richmond, Canada, represented by Gowling Lafleur Henderson, LLP, Canada.
The Respondent is N.A., Domain Adminstrator, West BayCayman Islands KY, United Kingdom of Great Britain and Northern Ireland, of United Kingdom.
2. The Domain Name and Registrar
The disputed domain name <absound.com> is registered with Abstract Names, Inc. d/b/a Answerable.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2007. On March 14, 2007, the Center transmitted by email to Abstract Names, Inc. a request for registrar verification in connection with the domain name at issue. On March 20, 2007, Abstract Names, Inc. 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 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 April 4, 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 April 5, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 25, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 1, 2007.
The Center appointed Maxim H. Waldbaum as the sole panelist in this matter on May 11, 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 is a provider of electronics, such as televisions, sound systems, computers, DVDs and CDs. In connection with this business, Complainant is the owner of three Canadian trademark registrations covering A&B and A&B SOUND, which have been in use as early as 1965.
Complainant had been operating a website at <absound.com> (the “Domain Name”) for a number of years, but allowed the registration of the Domain Name to lapse in 2002. Subsequently, Respondent registered the Domain Name on November 21, 2006.
5. Parties’ Contentions
Complainant contends the following:
The website associated with the Domain Name is currently being used as a pay-per-click portal affiliated with “www.domainsponsor.com”, which operates a revenue program whereby domain name holders that park their domain names at its sites become eligible for a referral fee. Respondent’s website displays numerous electronic, music, and computer-related sponsored links that resolve to websites promoting the goods and services of competitors of the Complainant. Thus, Respondent registered and used the Domain Name in an attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant as to source or sponsorship. Respondent did not respond to a cease and desist letter sent by Complainant on February 6, 2007.
The Domain Name is identical to Complainant’s mark because it incorporates the entirety of Complainant’s mark, the lack of an ampersand notwithstanding.
Respondent has no rights or legitimate interests in the Domain Name, as the Complainant has never authorized Respondent to use the Domain Name and Respondent is not commonly known by the Domain Name. Further, there is no evidence to suggest that Respondent is using or preparing to use the Domain Name in connection with a bona fide offering of goods or services. Associating the Domain Name with a pay-per-click website such as “www.domainsponsor.com” does not constitute a bona fide offering of goods or services.
Respondent registered and used the Domain name in bad faith by intentionally attempting to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement. The affiliation of a well-known mark such as Complainant’s with a pay-per-click website such as “www.domainsponsor.com” constitutes evidence of bad faith. Respondent’s failure to respond to Complainant’s transfer request also constitutes evidence of bad faith.
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 Name is 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 Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that Complainant has established rights in the A&B Sound trademark, by virtue of the Canadian trademark registrations. The Panel further finds that the Domain Name is confusingly similar to Complainant’s mark. The Domain Name incorporates Complainant’s mark in full, less the ampersand, a distinction that is well established to be inconsequential with respect to the confusion analysis. See e.g. AT&T Corp. v. CME Inc.,
WIPO Case No. D2001-1060.
The Panel, therefore, finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
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.
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 Name. The record does not contain any evidence that Respondent has been commonly known by the Domain Name, or has been authorized by Complainant to use the A&B SOUND trademark or Domain Name.
Respondent has also not used the Domain Name in connection with a bona fide offering of goods or services, or any otherwise legitimate or fair use. Numerous UDRP panels have held that directing domain names containing third-party trademarks to pay-per-click websites such as “www.domainsponsor.com” does not constitute a bona fide offering of goods or services. See e.g. Air Austral v. WWW Enterprise, Inc.,
WIPO Case No. D2004-0765; B and J Garcia, S.L., Arnedo, Spain v. Gorila,
WIPO Case No. 2004-1071; Deloitte Touche Tohmatsu v. Henry Chan,
WIPO Case No. D2003-0584.
Accordingly, the Panel finds that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and used the Domain Name in bad faith 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. The Panel finds that Respondent registered the Domain Name with at least constructive knowledge of Complainant’s trademarks as a result of the Complainant’s long-standing trademark registrations.
Respondent’s use of the Domain Name to forward visitors to pay-per-click websites and other websites advertising and selling goods in services in competition with Complainant is ample evidence of bad faith. See Ameriquest Mortgage Company v. Ling Shun Shing,
WIPO Case No. D2003-0294; PepsiCo, Inc. v. Forum LLC,
WIPO Case No. D2005-0737.
Furthermore, Respondent failed to respond to Complainant’s cease and desist letter, a fact that the Panel weighs in favor of a finding of bad faith. See America Online, Inc., v. Antonio R. Diaz,
WIPO Case No. D2000-1460.
For these reasons, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy.
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 <absound.com> be transferred to the Complainant.
Maxim H. Waldbaum
Dated: May 28, 2007