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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ITT Corporation, Goulds Pumps, Incorporated v. Services LLC

Case No. D2007-0387

 

1. The Parties

The Complainants are ITT Corporation (“ITT”) and Goulds Pumps, Incorporated (“GPI”) of White Plains, New York, United States of America and Seneca Falls, New York, United States of America respectively, both represented by RatnerPrestia, Wilmington DE, United States of America.

The Respondent is Services LLC, of Roseau, Commonwealth of Dominica, West Indies.

2. The Domain Name and Registrar

The disputed domain name <gouldspump.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 March 13, 2007. On March 16, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On March 20, 2007, Moniker Online Services, LLC 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 22, 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 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 11, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 25, 2007.

The Center appointed Jon Lang as the sole panelist in this matter on April 26, 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

GPI is a wholly owned subsidiary of ITT. GPI is the owner of numerous United States trademarks for or incorporating the GOULDS trademark for pumps, pump components and pump accessories marketed and sold worldwide. For instance – US Reg. No. 548,151 – GOULDS for ‘Power and hand pumps’ and US Reg. No. 2,244,728 - GOULDS PUMPS for ‘Replicas of cars and toys, namely model cars’. It has trademarks registered elsewhere as well – e.g. Canadian Reg. No. TMDA 19714 – GOULDS, and European Community Trademark Reg. No. 138917 – GOULDS.

GPI manufacturers water well pumps and sells pumps for a variety of uses e.g. in chemical processing, power generation, turf irrigation etc. It has a variety of product lines such as centrifugal pumps and turbine pumps. ITT uses the trade name ‘Goulds Industrial’ to refer to the business unit that manufactures and sells pumps in connection with the GOULDS trademark for industrial customers, and uses the trade name ‘Goulds Water’ or ‘Goulds Water Technology’ to refer to the business unit that manufactures and sells pumps in connection with the GOULDS trademark for water pumping applications. World wide sales of the GOULDS products and services run to hundreds of millions of USD, and advertising spent runs to many hundreds of thousands of USD. ITT owns various domain names incorporating the GOULDS mark, e.g. <gouldspumps.com>, <goulds.com> and <gouldspumps.biz>. The Complainants actively maintain “www.gouldspumps.com” to post information about its Goulds Industrial business unit and “www.goulds.com” to post information about its Goulds Water Technology business unit. The Complainants have offices and other facilities worldwide and do business in over 100 countries of the world.

Little is known about the Respondent and it has not taken part in these proceedings. It is known however that they are the registrant of the domain name in dispute, <gouldspump.com>. The domain name resolves to the website “www.gouldspump.com” which contains various links. These links transport the Internet user to other web pages which also contain links. For instance, clicking on the link ‘Industrial Pumps’ produces a page of further links not associated, sponsored or endorsed by the Complainants. One of these links is entitled ‘Industrial Pumps’ which, when clicked, takes the user to a website www.graymills.com where various pumps are advertised on behalf of a manufacturer not affiliated with the Complainants. Other links produce similar results, with an Internet user ending up at different websites not associated with the Complainants.

 

5. Parties’ Contentions

A. Complainant

The Complainants allege that the domain name in dispute is virtually identical and confusingly similar to the Complainants’ trademark, GOULDS. The domain name in dispute uses the trademark GOULDS in its entirety followed by the term ‘pump’. It is alleged that there is a likelihood of confusion as to association with the Complainants, particularly given the use of the word ‘pump’ which describes the Complainants’ goods. It is also alleged that the domain name in dispute is virtually identical to the Complainants domain name <gouldspumps.com> and <gouldspumps.biz>

The Complainants also say that the Respondent has no rights or legitimate interests in the domain name in dispute. They say that the Respondent is not affiliated with the them in any way, is not known by the name ‘Goulds’ or ‘Goulds Pumps’ yet uses the Complainants’ trademark to attract the public to its website that then has links to websites of companies that are not affiliated with the Complainants, including competitors of the Complainants. The Respondent is, so the Complainants allege, trading on the fame and goodwill of their mark to attract and then re-direct Internet users to other sites relating to the same area of business as the Complainants. It is also alleged that the Respondent generates revenue from the sponsored links or expects or expected to do so. The Complaints go on to say that the Respondent is not using the domain name in dispute in connection with a bona fide offering of services because it does not have authorisation to use their trademark as part of its domain name.

Finally the Complainants say that the Respondent is using the domain name in dispute in bad faith. The Complainants say that the Respondent had at least constructive notice of its trademarks given their registration and given, inter alia, the Respondent’s use of the Complainants’ product references on it website, it is clear that the Respondent was well aware of the Complainants’ business activities and deliberately attempted to trade on the Complainants’ goodwill in the GOULDS mark. The Complainants say that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with their marks and domain names as to the source, sponsorship, affiliation or endorsement of the website or of goods offered through links posted on it. Moreover, the Complainants allege, because of links on the Respondent’s website leading to websites of others who make or sell pumps but who are not affiliated with the Complainants, that it (the Respondent) is using the domain name primarily for the purposes of disrupting the business of a competitor.

B. Respondent

The Respondent did not reply to the Complainants’ contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is

(i) 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 domain name; and

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

A complainant must prove each of these three elements.

A. Identical or Confusingly Similar

The domain name in issue is clearly very similar to the trademarks of GPI. It uses the mark GOULDS in its entirety. But is it confusingly similar? The use of the word ‘pump’ immediately after ‘goulds’ in the domain name in dispute far from distinguishes the domain name from the mark – it adds to, or at least creates, a likelihood of confusion by strengthening in the mind of the Internet user the possibility if not likelihood of the owner of the domain name in fact being the owner of the mark to which it is similar or, at the minimum, some form of association between the Respondent and the Complainants. If there was not confusion without the word ‘pump’ in the domain name, there is clearly a likelihood of confusion with it, given that pumps, in all shapes and forms, is the mainstay of the Complainants’ business. For similar reasons, the domain name in issue is also confusingly similar to the mark GOULDS PUMPS. This element of paragraph 4 of the Policy has been established.

B. Rights or Legitimate Interests

The Respondent is not licensed in any way by the Complainants – there is no affiliation at all. A respondent can show it has rights to or legitimate interests in a domain name in various ways. For instance, it can show that it has been commonly known by the domain name or that it is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers. However, the Respondent is not known by the domain name in issue and, in all the circumstances, it cannot be said, at least on the basis of the documents of record, that there is legitimate noncommercial or fair use. Indeed, in the absence of contrary evidence, this Panel can only assume that the Respondent derives some commercial benefit from the website to which the domain name in dispute resolves. A respondent can also show that it was using a domain name in connection with a bona fide offering of goods or services. The use that the Respondent makes of the domain name has been described earlier. Promoting competing brands using a domain name confusingly similar to a complainant’s mark is not a bona fide offering of goods or services. There is ample support for this proposition. For instance, in Philip Morris USA Inc. v. n/a, WIPO Case No. D2004-0462, it was said

‘To offer competing brands for sale using a domain name confusingly similar to the Complainant’s trademark is not a bona fide offering of goods within the meaning of paragraph 4(c)(i) of the Policy: see Pfizer Inc v. The Magic Islands, WIPO Case No. D2003-0870 (December 31, 2003); Nikon, Inc. and Nikon Corporation v. Technilab, Inc., WIPO Case No. D2000-1774 (February 26, 2001).’

This element too of paragraph 4 of the Policy is established.

C. Registered and Used in Bad Faith

It seems clear that the Respondent was aware of the business of the Complainants at the latest, when it applied for the domain name in issue, because of the combination of ‘goulds’ and ‘pump’. In any event, the Respondent had constructive notice of GPI’s marks by virtue of the trademark registrations. One way of a complainant demonstrating bad faith registration and use is to show that by using the domain name in the way that a respondent has, a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it. Such would appear to be the circumstances here and, accordingly, this Panel finds that, for the purposes of the Policy, the domain name in issue has been 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, <gouldspump.com> be transferred to the Complainants.


Jon Lang
Sole Panelist

Dated: May 11, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0387.html

 

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