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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Centerbrook Sales, Inc. v. FIG Vietnam

Case No. D2007-0627

 

1. The Parties

The Complainant is Centerbrook Sales, Inc., Deep River, Connecticut, United States of America, represented by Seyfarth Shaw, United States of America.

The Respondent is FIG Vietnam, Ho Chi Minh City, Vietnam.

2. The Domain Names and Registrar

The disputed domain names <eveaddiction.com>, <evesaddictions.com> and <evesadiction.com> are registered with Fabulous.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2007. On April 27, 2007, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain names at issue. On April 30, 2007, Fabulous.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the disputed domain names and providing the Respondent’s contact details. The Center then verified that 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 May 2, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 22, 2007. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on May 29, 2007.

The Center appointed James A. Barker as the sole panelist in this matter on June 1, 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

In the absence of a Response, the following facts stand uncontested from the Complaint, and other documents in the case file.

The Complainant is in the business of designing and selling jewelry, particularly over the Internet. The Complainant was founded in 2003. It maintains a website at <evesaddiction.com>. The Complainant registered that domain name on September 30, 2003.

The Complainant has used the mark EVE’S ADDICTION in connection with its goods since at least April 2004.

The disputed domain names were all registered on February 2, 2005.

The disputed domain names reverted to similar portal websites, containing a list of hyperlinks to terms relating to jewelry (e.g. “pearl jewelry”, “diamond rings” or “diamond pendants”), that lead to products offered by competitors of the Complainant.

The Respondent has previously been an unsuccessful respondent in cases under the Policy, involving somewhat similar circumstances to this case. (See Central Purchasing, LLC v FIG Vietnam, WIPO Case No. D2007-0124; American University v. FIG Vietnam, NAF 0409000323760; Quartz Castle Inc. d/b/a GeneratorJoe v. FIG Vietnam, NAF 0612000863294.)

 

5. Parties’ Contentions

A. Complainant

The following contentions are summarized from the Complaint, ordered under headings relating to each of the elements which the Complainant must prove under the Policy, to be successful.

Identical or Confusingly Similar

The Complainant has rights in an unregistered, common-law trademark for the purpose of paragraph 4(a)(i) of the Policy. (The Complainant does not claim that it has registered rights in that mark.) That mark is inherently distinctive, has acquired substantial goodwill, and is well-known in the jewelry business.

The disputed domain names are all confusingly similar variations on the Complainant’s mark.

Rights and Legitimate Interests

The Respondent has no rights or legitimate interests in the disputed domain names. There is no evidence of any of the circumstances set out in paragraph 4(c) of the Policy, that constitute evidence of such rights or legitimate interests.

Registered and Used in Bad Faith

The Respondent had actual or constructive knowledge of the Complainant. Indeed, the Respondent uses a misleading version of the Complainant’s mark on its website, and includes references to jewelry on that site.

The Respondent has, firstly, attempted to trade on the goodwill in the Complainant’s mark, to divert Internet users to competitors of the Complainant. Secondly, the Respondent has registered the disputed domain names to profit by the sale of those domain names to the Complainant or its competitors.

B. Respondent

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

 

6. Discussion and Findings

For the Complaint to succeed, under paragraph 4(a) of the Policy, the Complainant must prove that:

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

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

(iii) the disputed domain names were registered in bad faith and are being used in bad faith.

The Complainant must prove each of these three elements, which are discussed in turn below.

A. Identical or Confusingly Similar

The first matter which the Complainant must establish is that it “has rights” in EVE’S ADDICTION as a common law mark. Establishing such rights requires that the Complainant make a case that the mark has become, through trade, distinctively identified with the Complainant.

The Complainant provided substantive evidence that it has used the mark in trade: principally comprising copies of the websites through which it does business, and archival copies of those websites dating back to May 20, 2004.

The Complainant also provided evidence that the mark EVE’S ADDICTION is distinctively identified with it. The Complainant provided evidence of using the mark as its principal website, prominently displaying the mark on those websites, and of referring to itself as “EvesAddiction.com” on those websites. Although the terms “Eve” (as a common name, or noun) and “addiction”(as a common noun) are separately generic, their combination is not natural or obvious, and appears to be sufficiently distinctive, on its face, for common law trademark purposes.

For these reasons, the Panel finds that the Complainant has rights in a common law mark for the purpose of paragraph 4(a)(i) of the Policy.

The Panel also finds that each of the disputed domain names are confusingly similar to the Complainant’s mark. As discussed further below in relation to bad faith, it is reasonably clear that the Respondent has engaged in a form of ‘typosquatting’, or a misspelling of the Complainant’s mark. A series of previous cases have found that such domain names are confusingly similar to the marks which they misspell. (See e.g. Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo, WIPO Case No. D2003-0707, and the cases cited in that one.)

In this case, each of the disputed domain names is different in only slight degree from the Complainant’s EVE’S ADDICTION mark. The disputed domain names incorporate the Complainant’s mark entirely, on an overall visual and phonetic impression. Two of the domain names only differ by dropping or adding an “s” <eveaddiction.com> and <evesaddictions.com>. The third domain name only differs by misspelling the “addiction” element of the Complainant’s mark <evesadiction.com>.

Accordingly, the Panel finds that the Complainant has established its case under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

It is well-established under the Policy that once a Complainant has established a prima facie case under paragraph 4(c), the burden shifts to the Respondent to show evidence of its rights or legitimate interests.

The Complainant has established such a prima case, by contending that the Respondent has no rights or legitimate interests in the disputed domain names, because there is no evidence that would satisfy the factors set out in paragraph 4(c) of the Policy. Paragraph 4(c) of the Policy provides that a Respondent may demonstrate rights or legitimate interests if the Respondent (i) has used or undertaken demonstrable preparations to use, a domain name in connection with a bona fide offering of goods or services, or (ii) is commonly known by the domain name, or (iii) is making a legitimate noncommercial or fair use of the domain name.

The Respondent has failed to respond to the Complainant, and so has provided no evidence of any of the circumstances in paragraph 4(c), nor any other evidence.

Neither is there any evidence from the record in this case that would otherwise indicate that the Respondent has a right or legitimate interest in the disputed domain names. In relation to paragraph 4(c)(ii) of the Policy, there is no evidence that the Respondent is known by the domain names, which are registered to “FIG Vietnam”. In relation to paragraph 4(c)(ii), the use of the domain names is self-evidently not a “non-commercial” use – the relevant websites all essentially advertise products for sale. Neither is that use bona fide within the meaning of paragraph 4(c)(i). The Respondent uses the disputed domain names in connection with a ‘portal’ website. As noted above and below, the Complainant’s mark appears distinctive, and the concurrent registration of three domain names misleadingly similar to that mark is likely to have been done to create confusion with the Complainant’s mark.

For these reasons, the Complainant has established its case under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Complainant argues, firstly, that that the Respondent has registered and used the disputed domain names in bad faith under paragraph 4(b) of the Policy. Paragraph 4(b) 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.

In particular, the Complainant contends that the Respondent has, firstly, registered and used the disputed domain names to divert Internet traffic to the Respondent’s websites.

Secondly, the Complainant contends that the Respondent has sought to profit by the sale of the domain names to the Complainant or a competitor of the Complainant, which may amount to bad faith for the purpose of paragraph 4(b)(i) of the Policy.

There is no evidence to support the second of these arguments. But there is substantial evidence to support the first.

From the evidence, it is apparent that the Respondent has engaged in ‘typosquatting’, for the purpose of misleadingly diverting Internet traffic, within the meaning of paragraph 4(b) of the Policy. As noted in Amazon.com, Inc. v. Steven Newman a/k/a Jill Wasserstein a/k/a Pluto Newman, WIPO Case No. D2006-0517:

“Typosquatting” involves the intentional registration and use of a domain name that is a common misspelling or predictable mistyping of a distinctive mark…In a typical “typosquatting” case, the respondent has registered and is using the domain name in order to take advantage of typographical errors made by internet users seeking the complainant’s commercial website and divert them to the respondent’s website.

Determining whether a domain name is a misspelling of a mark will often be clear from the facts of the case, including the likelihood of the Respondent’s awareness of the Complainant’s mark, whether the Respondent has a legitimate interest in the variation at issue, and the nature of the domain name in dispute (for example, whether it is apparent that the domain name has no sensible meaning, apart from its confusing association with a complainant’s mark).

This is one such clear case. The Respondent has simultaneously registered three domain names, all confusingly similar to the Complainant’s mark. This fact, on its own, strongly suggests that the Respondent was aware of the Complainant’s mark, and that the variations are deliberate misspellings of that mark.

The other evidence in this case supports that finding. Among this evidence is that:

- All the disputed domain names revert to essentially the same website, which includes links to products related those of the Complainant.

- The Respondent has been a previously unsuccessful respondent in prior proceedings under the Policy, in which the Panel made findings of typosquatting. (See e.g. Central Purchasing, LLC v FIG Vietnam, WIPO Case No. D2007-0124.)

- The Complainant’s mark appears relatively distinctive, suggesting that it is more likely that the Respondent was particularly aware of it when it registered the disputed domain names.

- The Respondent has made no response to the allegations against it. Under paragraph 14(b) the Panel may draw inferences as it considers appropriate from such a failure, including that the Respondent does not deny the case made against it by the Complainant. (In any case, the Respondent has obviously not denied the Complainant’s case for the purpose of these proceedings.)

Accordingly, the Panel finds that the Complainant has established its case under 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 <eveaddiction.com>, <evesaddictions.com> and <evesadiction.com> be transferred to the Complainant.


James A. Barker
Sole Panelist

Dated: June 15, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0627.html

 

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