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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

>MasterCard International Incorporated v. Cyber Blue Media/Richard Randolph

Case No. D2007-1137

1. The Parties

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

The Respondent is Cyber Blue Media/Richard Randolph, Westchester, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <wwwpriceless.net> (the “Domain Name”) is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2007. On August 3, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name at issue. On August 6, 2007, eNom transmitted by email to the Center its verification response stating that the registrant of record was different than the entity named in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 8, 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 August 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 13, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 14, 2007.

The Center appointed Michelle Brownlee as the sole panelist in this matter on September 24, 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 Complainant is a financial services company that has conducted an extensive global advertising campaign for its MASTERCARD services using the slogan “Priceless”. The Complainant owns trademark registrations for PRICELESS in connection with financial services in the United States of America, Canada, Mexico, Denmark, France, Spain, United Kingdom, European Community and Australia. The Complainant also operates a website at the domain name <priceless.com>.

5. Parties’ Contentions

A. Complainant

Respondent uses the Domain Name to redirect Internet users to a website that contains links that offer goods and services of the Complainant and its competitors. The Complainant contends that the Domain Name is confusingly similar to the Complainant’s PRICELESS trademark, that the Respondent has no rights or legitimate interests in the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:

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

(2) the respondent has no rights or legitimate interests in respect of the domain name; and

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

A. Identical or Confusingly Similar

The Domain Name is identical to Complainant’s trademark except for the addition of the letters “www” before the mark. Pairing of Complainant’s famous trademark with the letters “www” is likely to appear to Internet users as though the Domain Name is identical to Complainant’s trademark, because most URLs include “www” followed by a period before the second level domain name, and Internet users would most likely not notice the omission of the period. Other panels have found confusing similarity under similar circumstances. See, e.g., Reuters Limited v. Global 2000, Inc. ( WIPO Case No. D2000-0441, July 13, 2000). Accordingly, the Panel finds that the Domain Name is confusingly similar to Complainant’s trademark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:

(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.

The Panel is satisfied that the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the Domain Name. Respondent has not presented evidence that it used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that it is commonly known by the Domain Name or that it is making a noncommercial or fair use of the Domain Name. Moreover, use of the Domain Name simply to provide links to websites (a practice that is typically engaged in to collect click-through referral fees) cannot of itself be considered a bona fide offering of goods or services, or a noncommercial or fair use. See PRL USA Holdings, Inc. v. LucasCobb ( WIPO Case No. D2006-0162, March 20, 2006). Accordingly, the Panel finds that Respondent does not have any rights or legitimate interests in the Domain Name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.

The Panel is satisfied in the circumstances of the present case that Complainant has on balance established bad faith under Paragraph 4(b)(iv) of the Policy. Respondent has not sought to answer the Complainant’s case, or to assert any good faith basis for registering the term “priceless” in combination with the prefix “www”. Respondent’s use of the Domain Name to presumably earn referral fees by linking to other websites attracts Internet users to Respondent’s site by creating confusion as to source and results in commercial gain to Respondent.

It also bears mention that Respondent’s “typosquatting” use of a common typographical error that Internet users make when they are likely trying to find a website associated with Complainant to direct traffic to another site is also evidence of bad faith, even though this activity is not expressly covered by the enumerated factors in Paragraph 4(b). See e.g., The Nasdaq Stock Market, Inc. v. Shawn Cain d/b/a Star Inc., WIPO Case No. D2002-1125 (January 27, 2003).

The Panel finds on balance that the Domain Name was 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 <wwwpriceless.net> be transferred to the Complainant.


Michelle Brownlee
Sole Panelist

Dated: October 2, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1137.html

 

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