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WIPO Arbitration and Mediation Center


MasterCard International Incorporated v. Hector Cancel

Case No. D2007-1121


1. The Parties

The Complainant is MasterCard International Incorporated, Purchase, New York, of United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.

The Respondent is Hector Cancel, Canoga Park, California, of United States of America.

2. The Domain Name and Registrar

The disputed domain name <master--card.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2007. On August 2, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On August 2, 2007, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center 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 August 7, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 27, 2007. The Response was filed with the Center on August 7, 2007.

The Center appointed Sandra A. Sellers as the sole panelist in this matter on August 17, 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

MasterCard is a leading global payments solutions company. It has been in the payment card business since 1966 and has operated under the name and mark MASTERCARD since at least as early as 1980. MasterCard manages a family of payment card brands and serves financial institutions, consumers and businesses in over 210 countries and territories.

MasterCard holds trademark registrations for the mark MASTERCARD in over 80 countries. MasterCard owns over 100 US registrations and applications for marks incorporating MASTERCARD. MasterCard also has registered numerous domain names containing the name and mark MASTERCARD or variants thereof, including <mastercard.com>

The domain name was registered on January 22, 2002. Respondent uses the domain name in connection with a searchable portal website displaying commercial links to Complainant as well as to Complainant’s competitors.

Respondent sent emails to WIPO with its informal response to the Complaint.


5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name is identical or confusingly similar to Complainant’s Mark, with simply the insertion of two hyphens. Complainant alleges that Respondent has no rights or legitimate interest in the domain name. Complainant also alleges that Respondent is using the domain name to intentionally trade on the fame and reputation of Complainant’s mark, and that Respondent is deliberately using Complainant’s famous mark to attract Internet users to Respondent’s website for commercial gain, with “click through” revenue.

B. Respondent

Though Respondent responded to the Complaint, Respondent did not substantively contest the allegations.


6. Discussion and Findings

Pursuant to paragraphs 4(a)(i) to (iii) of the Policy, for Complainant to prevail and have the disputed domain name transferred to it, Complainant must show that:

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

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

(iii) the Respondent has registered and are using the disputed domain name in bad faith.

A. Identical or Confusingly Similar

Complainant clearly has rights in the mark MASTERCARD, based on its long and extensive use and ownership of numerous trademark registrations worldwide.

The domain name is identical or at least confusingly similar to the MASTERCARD mark because it merely inserts two hyphens between “master” and “card”. The insertion of hyphens to separate a trademark in two has been found to be confusingly similar, as an example of typo-squatting, and is not sufficient to differentiate the domain name from the Complainant’s trademark. See Ticketmaster Corporation v. Cecil Spafford, WIPO Case No. D2002-0944 (<ticket--master.com> transferred to the owner of TICKETMASTER trademark); Toyota Motor Sales, USA v. Pick Pro Parts, Inc., WIPO Case No. D2005-0562 (<lexus--parts.com> and <Toyota--parts.com> transferred to owner of TOYOTA and LEXUS trademarks.)

The Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s registered mark, and that Complainant meets the first criterion of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Respondent is not affiliated or related to Complainant, nor is Respondent licensed or authorized to use the MASTERCARD mark. On the evidence before the Panel, Respondent does not appear to make any legitimate non-commercial or fair use of the domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name. Respondent has not rebutted this.

Based on the foregoing and considering Respondent’s use of the domain name explained further below under paragraph 6.C., the Panel finds that Respondent does not have any rights or legitimate interests in respect of the domain name and that Complainant meets the second criterion of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

As set forth above, Complainant is a leader in the global payments industry, and has been in the payment card business for over 40 years. Complainant serves customers in over 210 countries. Complainant’s Marks, products and services clearly are well-known. The fame and reputation of a Complainant’s mark is persuasive in determining a Respondent’s bad faith intent. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Based on these facts, this Panel infers that Respondent was aware of Complainant’s mark when Respondent registered the disputed domain name. See, e.g., Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, in which the panel found it “inevitable that Respondent registered the domain names in full knowledge of Complainant’s rights and interests”.

Respondent’s home page contains nothing but links to various other payment card sites, all of which are related to or competitive with Complainant’s products. Respondent has used the disputed domain name to direct visitors to other vendors. It is noteworthy that, in the Response, Respondent admits that “I know it is a problem that I had visa and amex offers on a site like that!”

It is likely that Respondent receives “click-through” revenue by directing those visitors to the other websites. UDRP panels have consistently found that, under similar circumstances, receiving click-through revenue by directing visitors to other websites constitutes bad faith. See Nokia Corporation v. Nokiagirls.com aka IBCC, WIPO Case No. D2000-0102. This Panel finds that Respondent has in all likelihood used the disputed domain name intentionally to attract Internet users for commercial gain and with the intent to misleadingly divert consumers to other websites.

This Panel finds that Respondent has registered and used the disputed domain name in bad faith, in violation of paragraph 4(b)(iv) 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 <master--card.com> be transferred to the Complainant.

Sandra A. Sellers
Sole Panelist

Dated: August 31, 2007


Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1121.html


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