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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Trader Corporation v. Daryl Erdmann

Case No. D2007-0839

 

1. The Parties

The Complainant is Trader Corporation, Quйbec, Canada, represented by Lang Michener LLP, Canada.

The Respondent is a person claiming to be Daryl Erdmann, Fargo, North Dakota, United States of America.

2. The Domain Name and Registrar

The disputed domain name <trader-corporation.com> (the “Domain Name”) is registered with TierraNet d/b/a DomainDiscover (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on June 8, 2007, and in hard copy on June 12, 2007. The Center transmitted its request for registrar verification to the Registrar on June 11, 2007. The Registrar responded by email on June 12, 2007, confirming that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that the Domain Name had been administratively locked and would remain locked pending this proceeding, and that the registration agreement was in English and contained a submission to the jurisdictions of the Courts at the registrant’s domicile and San Diego County, California (where its principal office is located); and providing the contact details in respect of the registration on its database.

The Center verified that the Complaint satisfied the formal requirements of 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 by email and courier to the contact addresses provided by the Registrar and to postmaster@trader-corporation.com, and the proceedings commenced on June 14, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 4, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 5, 2007.

The Center appointed Jonathan Turner as the sole panelist in this matter on July 11, 2007. 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.

Having reviewed the case file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.

On July 18, 2007, the Complainant informed the Center that a person claiming to be Daryl Erdmann had contacted the Complainant alleging that the Domain Name had been registered by an unidentified party who had stolen his identity. The Panel is not able to determine whether this is true, but considers that, if so, it makes no difference to this Decision apart from reinforcing the finding of bad faith set out below. References to the Respondent in this Decision refer to the person who registered the Domain Name, whether or not his true name is Daryl Erdmann.

 

4. Factual Background

The Complainant publishes approximately 200 publications and operates 20 websites advertising cars and automotive products, real estate, general merchandise and jobs. Its publications have a weekly readership of approximately one million and its websites attract nearly 3.5 million unique visitors per month. The Complainant is based in Canada and has a presence throughout Canada as well as in Tennessee, Indiana and Kentucky in the United States of America.

Many of the Complainant’s publications are published under the name “Trader” accompanied by words describing the subject-matter advertised in the publication. TRADER was registered as a trademark in Canada in 1992, in respect of periodical publications offering the goods of others for sale or purchase, publication of periodical magazines featuring advertising and services of providing an on-line database advertising the goods of others for sale or purchase. This registration was effected by a predecessor of the Complainant and is now owned by the Complainant. The Complainant also owns 31 other registered trademarks in Canada incorporating the word “Trader”, 30 of which pre-date the registration of the Domain Name by the Respondent.

The Complainant registered the domain names <tradercorporation.com>, <tradercorporation.ca>, <societetrader.com> and <societetrader.ca> on June 8, 2006. The Complainant has used the first two of these domain names to direct Internet users to its English language website and the second two to direct Internet users to its French language website.

The Domain Name was registered on September 17, 2006, and came to the attention of the Complainant on May 31, 2007. At that date the Domain Name resolved to a website homepage which reproduced the entirety of the home page at the Complainant’s English language website with an additional paragraph, which read:

“Trade Corporation has started in 2006 a program to help protect buyers against fraud and misrepresentation, Business Protection Program that is provided for free on all eligible capital equipment transactions completed on the Trader Corporation sites on or after April 15, 2006. The program offers coverage up to $25,000. Click here for Programs and terms”

The link “Programs and terms” leads to pages of the Respondent’s website which describe a business protection program and include copyright notices in the form “Copyright © Trader Corporation”.

All other links on the Respondent’s homepage are directed to pages of the Complainant’s website.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to its registered trade marks and unregistered trade names; that the Respondent has no rights or legitimate interests in relation to the Domain Name or any corresponding name; and that it was registered and is being used in bad faith, to mislead Internet users into believing that the Respondent’s website is that of the Complainant, with a view to phishing for private information from Internet users who believe they are dealing with the Complainant and/or disrupting the Complainant’s business with the goal of extracting money from the Complainant in return for releasing the Domain Name.

B. Respondent

As noted above, the Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (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. Each of these requirements will be considered in turn below.

In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.

A. Identical or Confusingly Similar

The Panel considers that the Domain Name is identical or confusingly similar to the Complainant’s name TRADER CORPORATION, from which it differs only in the interposition of a hyphen between the component words and the addition of the generic “.com” suffix. The Panel is satisfied in this respect that, in addition to its registered TRADER mark, the Complainant has provided sufficient evidence of common law rights in TRADER CORPORATION by reason of its extensive use of this mark. Accordingly, the first requirement of the Policy is met.

B. Rights or Legitimate Interests

According to the Complainant’s undisputed evidence, the Respondent did not make any use or preparations for use of the Domain Name in connection with a bona fide offering of goods or services; indeed he does not supply any goods or services. Nor is he commonly known by the Domain Name. Nor is he making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or tarnish the Complainant’s mark.

On the contrary, the Respondent does not challenge the Complainant’s evidence that he is using the Domain Name to divert Internet users who are misled by it into believing that his website is that of the Complainant with a view to obtaining commercial gain in the form of valuable data and/or payment from the Complainant.

Nor does there appear to be any other basis on which the Respondent might claim to have rights or legitimate interests in respect of the Domain Name.

On the evidence before it, the Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the second requirement of the Policy is met.

C. Registered and Used in Bad Faith

The Respondent does not dispute the Complainant’s evidence that he is using the Domain Name to divert Internet users by misleading them into believing that his website is that of the Complainant, with a view either to phishing fraudulently for personal data via the “business protection program” offered on his website and/or to disrupting the Complainant’s business so as to obtain payment from the Complainant for releasing the Domain Name.

The Panel is satisfied that this use of the Domain Name by the Respondent is in bad faith and it is reasonable to infer that it was registered in bad faith for this purpose. Accordingly, the Panel concludes that the third requirement of the Policy is satisfied.

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, <trader-corporation.com>, be transferred to the Complainant.


Jonathan Turner
Sole Panelist

Dated: July 24, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0839.html

 

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