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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

>GMB Inc. v. Caribbean Online International Ltd.

Case No. D2007-1159

1. The Parties

The Complainant is GMB Inc., North Carolina, United States of America, represented by Bricker & Eckler LLP, United States of America.

The Respondent is Caribbean Online International Ltd., Nassau, Bahamas.

2. The Domain Name and Registrar

The disputed domain name <camelwides.com> is registered with CapitolDomains, LLC, United States of America.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2007. On August 7, 2007, the Center transmitted by email to CapitolDomains, LLC a request for registrar verification in connection with the domain name at issue. On August 8, 2007, CapitolDomains, LLC 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 10, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2007.

The Center appointed Kiyoshi I. Tsuru as the sole panelist in this matter on September 10, 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. The decision due date was extended to October 2, 2007.

4. Factual Background

Due to the fact that the Respondent failed to submit an answer to the Complaint, the following facts are undisputed:

The R.J. Reynolds Tobacco Company (“R.J. Reynolds”) is the exclusive licensee of the Complainant, GMB, Inc., in the United States of America.

R.J. Reynolds is the holder of the following United States trademark registrations:

TRADEMARK

REG. No.

Class

(Int’l)

DATE OF REGISTRATION

FILING DATE

COUNTRY

CAMEL

126,760

34

September 30, 1919

April 4, 1919

USA

CAMEL

1,502,414

34

August 30, 1988

January 25, 1988

USA

CAMEL (and design)

1,391,824

34

April 29, 1986

August 30, 1985

USA

CAMEL WIDES

1,693,466

34

June 9, 1992

November 16, 1989

USA

I’D WALK A MILE FOR A CAMEL

1,185,094

34

January 5, 1982

February 26, 1980

USA

CAMEL TURKISH & DOMESTIC BLEND CIGARETTES

222,446

34

January 4, 1927

July 28, 1926

USA

CAMEL LIGHTS HARD PACK

1,226,116

34

February 1, 1983

April 28, 1980

USA

CAMEL TURKISH GOLD

2,620,063

34

September 17, 2002

December 14, 2000

USA

CAMEL TURKISH JADE (and design)

2,749,434

34

August 12, 2003

October 22, 2001

USA

5. Parties’ Contentions

The Complainant makes the following assertions. The factual elements of the Complainant’s assertions are generally accepted as true in the circumstances of this case, in light of its supporting documents. The legal issues are discussed in the next section of this decision.

A. Complainant

The Complainant states the following:

That CAMEL cigarettes were introduced into the United States of America market in 1913.

That it is the United States’ second largest tobacco company, manufacturing roughly one out of every three cigarettes sold in the United States of America, with a market share of over 7%.

Similarity of the Domain Name and Trademark.

In respect of the domain name being identical or confusingly similar to a trademark in which the Complainant has rights, the Complainant states the following:

That the Respondent is capitalizing on the CAMEL and CAMEL WIDES trademarks by registering a domain name that incorporates, in its entirety, the name of Complainant’s well known cigarette brand CAMEL WIDES. The <camelwides.com> domain name incorporates the CAMEL WIDES mark in its entirety.

That the advertising, marketing and promotion of Camel cigarettes through the use of the CAMEL trademark for more than ninety years has caused the consumer to recognize the CAMEL trademark as an indicator of quality cigarettes, and to seek out and purchase Camel cigarettes rather than those of other manufacturers.

That since April of 2000, the Complainant has owned and used the <camelsmokes.com> domain name where customers can acquire information on Camel cigarettes as well as information on other promotional activities.

That the Respondent’s posting of links to products and information relevant to the Complainant’s products and services on <camelwides.com> will confuse consumers into believing that this domain name is associated with R.J. Reynolds and its products and services.

Respondent’s Rights and Legitimate Interests.

The Complainant contends that the Respondent has no rights or legitimate interests in the domain name on the basis of the following elements:

That the Respondent has no legitimate rights in the CAMEL trademark or the <camelwides.com> domain name.

That the Respondent is not a licensee of, or otherwise currently affiliated with the Complainant.

That the Respondent’s name does not include the word “Camel”.

Bad Faith Registration and Use.

The Complainant claims that the domain name was registered and used in bad faith by the Respondent and relies on the following elements:

That the Respondent registered the <camelwides.com> domain name in an effort to capitalize on the recognition of the CAMEL and CAMEL WIDES marks by those seeking information on Camel cigarettes or looking to purchase Camel or Camel Wides cigarettes.

That the main body of the <camelwides.com> Web site invites browsers to click through to various links. That the link entitled “Camel or Marlboro” takes browsers to a page where they can vote on their preferred brand. That Marlboro products are made by Philip Morris, who is a direct competitor to Camel. Other links invite browsers to sites for competing cigarette products, and even to sites offering smoking cessation services.

That upon investigation, the Complainant learned that <camelwides.com> had changed registrars 3 times in two years, in an apparent collusive attempt to avoid detection by rotating the names of the registrant.

That this is not the first time that the Respondent has engaged in such activities.

B. Respondent

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

6. Discussion and Findings

In accordance with the Policy, Paragraph 4(a), the Complainant must prove that:

“(i) the domain name in question is 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 domain name, and

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

In the administrative proceeding, the Complainant must prove that each three of these elements are present.

As the Respondent has failed to submit a Response to the Complaint, the Panel may choose to accept as true all of the allegations of the Complaint (Encyclopaedia Britannica, Inc. v. null John Zuccarini, Country Walk, WIPO Case No. D2002-0487; Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).

A. Identical or Confusingly Similar

The Complainant has submitted evidence showing the existence of trademark registrations for CAMEL. The record holds the Complainant’s uncontested statements regarding the continuous use of CAMEL since 1913 in the United States of America. The trademark CAMEL has been widely publicized worldwide.

The disputed domain name <camelwides.com> is identical to the Complainant’s trademark CAMEL WIDES and is also confusingly similar to the trademark CAMEL, because it entirely incorporates said trademark (see Dell Inc. v. George Dell and Dell Net Solutions, WIPO Case No. D2004-0512).

The absence of a space between the textual elements of the Complainant’s mark and the addition of the generic top-level domain “.com” are immaterial under the Policy. To carry into effect the similarity analysis, a panel must not take into account the generic top-level domain (gTLD) “.com”, because such gTLD has no legal significance. See Ahmanson Land Company v. Vince Curtis, WIPO Case No. D2000-0859, (citing in turn Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300, J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing, WIPO Case No. D2000-0035; see also Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429 and Sony Kabushiki Kaisha v. Inja, Kil, WIPO Case No. D2000-1409).

The first requirement of the Policy has been met.

B. Rights or Legitimate Interests

The following are examples of circumstances where a respondent may have rights or legitimate interests in a contested domain name:

“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are 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 or service mark at issue.” (Policy, paragraph 4(c)).

The Respondent has not submitted evidence showing its preparations to use the disputed domain name with a bona fide offering of goods or services, nor has the Respondent proved that it has been commonly known as <camelwides.com >, or that it is making a legitimate, noncommercial or fair use of the disputed domain name.

In fact, the evidence submitted by the Complainant suggests that the Respondent has used the contested domain name with intent for commercial gain to divert consumers. The use of the disputed domain name to resolve to a Web site that contains links and/or references to the Complainant’s competitors and class of products cannot be legitimate, especially in light of the widespread publicity that has been given to the trademark CAMEL (Regarding links to competitors, see Deutsche Telekom AG v. Dong Wang, WIPO Case No. D2005-0819).

Therefore, this Panel finds that the Respondent lacks rights or legitimate interests in the contested domain name <camelwides.com>.

The second requirement of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

According to paragraph 4(b) of the Policy, the following circumstances shall be evidence of registration and use in bad faith:

“(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or

(ii) you have 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 you have engaged in a pattern of such conduct; or

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

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

According to the record, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s Web site, by creating a likelihood of confusion with the Complainant’s trademarks CAMEL and CAMEL WIDES. The Respondent’s incorporation of these widely publicized trademarks in the contested domain name does not seem to be a coincidence, particularly when taking into account that the Respondent’s Web site, according to the evidence submitted by the Complainant, is populated by links and/or references to the Complainant’s competitors and products (see Adobe Systems Incorporated v. Domain OZ, WIPO Case No. D2000-0057). The following quote from New Chapter Inc. v. Caribbean Online International Ltd., WIPO Case No. D2006-1251, is applicable to the present case:

“The Respondent did not choose to register the domain name by accident. It simply misappropriated a domain name and used it to attract Internet users to offer them links to goods that compete with the Complainant’s, presumably for commercial gain (as click-through fees, advertising or otherwise). Given the use of the domain name made by the Respondent, such conduct falls within the type of bad faith registration and use contemplated by paragraph 4(b)(iv). In addition, it is difficult to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be infringing or tarnishing the Complainant’s marks”.

The evidence shows that this is not the first time that the Respondent incorporates the trademarks of others in the Respondent’s domain names. See New Chapter Inc. v. Caribbean Online International Ltd., WIPO Case No. D2006-1251; HBH, Limited Partnership v. Caribbean Online International Ltd.,(supra); Credit Industriel et Commercial en abrйgй CIC v. Caribbean Online International Ltd., WIPO Case No. D2007-0423. This conduct constitutes bad faith under Paragraph 4(b)(ii) of the Policy.

In light of the above, this Panel finds that the contested domain name has been registered and is being used in bad faith, in accordance with the Policy. The third requirement of said Policy has been met.

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 <camelwides.com> be transferred to the Complainant.


Kiyoshi I. Tsuru
Sole Panelist

Dated: October 2, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1159.html

 

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