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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

MySpace, Inc. v. Mari Gomez

Case No. D2007-1231

1. The Parties

The Complainant is MySpace, Inc., Beverly Hills, California, United States of America.

The Respondent is Mari Gomez, Irvine, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <myspacetv.org> is registered with Blueberry Hill Communications, Inc. dba 4domains.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2007. On August 23, 2007, the Center transmitted by email to Blueberry Hill Communications, Inc. dba 4domains.com a request for registrar verification in connection with the domain name at issue. On August 24, 2007, Blueberry Hill Communications, Inc. dba 4domains.com 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 29, 2007. In accordance with the Rules, Paragraph 5(a), the due date for Response was September 18, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 19, 2007.

The Center appointed Angela Fox as the sole panelist in this matter on October 3, 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 owns and operates the well-known Internet social networking service, Myspace. The Myspace service, founded in 2003, puts users in touch with other users and allows them to build and store profiles accessible to others through the Complainant’s “www.myspace.com” website and various international versions of it owned and operated by the Complainant or its related entities. The MYSPACE trademark features prominently throughout the “www.myspace.com” website.

The Myspace service has enjoyed an extremely high level of commercial success. In November 2006 alone, the “www.myspace.com” website recorded 38.7 billion U.S. page views, surpassing the then leading web portal, “www.yahoo.com”. The Myspace service has been the subject of cover stories and commentary in international periodicals including Time, Fortune, Wired and BusinessWeek, and searches through the top Internet search engines identify the Complainant’s “www.myspace.com” website as the number one search result for the term Myspace. According to “www.alexa.com”, a web service that provides information on web traffic, the “www.myspace.com” site is ranked 6th in overall worldwide web traffic, and third in traffic among users in the United States of America.

The Complainant owns trademark registrations for MYSPACE and marks incorporating it. Annexed to the Complaint were copies of registration certificates relating to U.S. federal registration nos. 2911041 for MYSPACE filed on December 1, 2003 and issued on December 14, 2004; 3183151 for MYSPACE filed on September 6, 2005 and issued on December 12, 2006; and 3183162 for MYSPACE A PLACE FOR FRIENDS and Design, filed on September 9, 2005 and issued on December 12, 2006.

The disputed domain name was registered on February 2, 2007. It links directly to the Complainant’s “www.myspace.com” website. The disputed domain name stands in the name of Mari Gomez, but efforts by the Complainant and the Center to reach this individual using the WHOIS contact details have failed. According to returned post, the address supplied by the Respondent belongs to vacant premises. The telephone number provided appears to be for a local directory assistance service, and the fax line given is a non-working number.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the contested domain name is identical to the Complainant’s MYSPACE marks. The disputed domain name incorporates the MYSPACE mark in its entirety, and the Complainant argues that the remaining matter is a descriptive and generic domain name suffix and abbreviation for “television”, and does nothing to distinguish the domain name from the Complainant’s mark.

The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant did not consent to the Respondent’s use of the MYSPACE mark, and the Respondent is not commonly known by a name corresponding to it. The Complainant points out that the Respondent registered the disputed domain name after the Complainant had established rights in the MYSPACE trademark through registration and extensive use. The Complainant argues that the MYSPACE mark is so well-known that there can be no legitimate use by the Respondent.

Finally, the Complainant submits that the domain name was registered and has been used in bad faith. The Complainant points to the Respondent’s apparent provision of false contact details as evidence of bad faith registration and use. The Complainant further avers that the Respondent’s use of the disputed domain name to link to the Complainant’s own MYSPACE site evinces use in bad faith, as the disputed domain name is likely to be perceived as belonging to, controlled by or authorized by the Complainant, when it is not. Moreover, the Complainant contends that the Respondent may at any time monitor, misdirect or otherwise affect traffic attempting to reach the Complainant’s website through the disputed domain name. The Complainant adds that given the fame of its MYSPACE marks, it is not possible to conceive of a use of the disputed domain name by the Respondent that would not infringe the Complainant’s rights.

B. Respondent

The Respondent did not reply to the case against it and is in default. No exceptional circumstances explaining the default have been put forward. Therefore, in accordance with Paragraphs 14 (a) and (b) of the Rules, the Panel will decide the Complaint and shall draw such inferences as it considers appropriate from the Respondent’s default.

6. Discussion and Findings

Under Paragraph 4 (a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the Panel finds that:

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

(ii) the respondent has no rights or legitimate interests in the domain name;

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

All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy.

A. Identical or Confusingly Similar

The Complainant has satisfactorily proved ownership of rights in the MYSPACE trademark.

The disputed domain name incorporates the whole of the Complainant’s trademark, differing only in the presence of the generic gTLD suffix, “.org”.

It is well-established that domain name suffixes do not affect the comparison of a domain name with a complainant’s trademark (see inter alia Christian Dior Couture v. Alex Rochй, WIPO Case No. DTV2007-0004).

The Panel finds that the disputed domain name is identical to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Complainant did not consent to the Respondent’s registration and use of the disputed domain name. Nor has the Respondent offered any evidence that it holds any right or legitimate interest in it. Indeed, the Respondent only appears to have used the disputed domain name to re-direct visitors to the Complainant’s own “www.myspace.com” website.

The Panel may nonetheless infer that the Respondent has a legitimate right or interest in the disputed domain name if based on its evaluation of the evidence either of the following under Paragraph 4(c)(i) or (iii) of the Policy applies:

(i) before any notice to the Respondent of the dispute, the Respondent used, or made 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;

(iii) you are making a legitimate non-commercial 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.

The Panel does not, however, regard either provision as a basis for finding a legitimate right or interest in this case. As regards Paragraph 4(c)(i), although the Respondent is effectively making a passive use of the disputed domain name, that use does not entail the offer of any goods or services on the part of the Respondent. As regards Paragraph 4(c)(iii), the linking of the disputed domain name to the Complainant’s commercial website is not a legitimate non-commercial or fair use of the domain name, since the “use” is clearly associated with a commercial website. Indeed, it appears that the Respondent’s use is neither a business nor a non-business use, amounting only to a pointer toward the Complainant’s own legitimate business use (see Ameriquest Mortgage Co. v. Jason Banks, WIPO Case No. D2003-0293).

In any event, it is difficult to imagine how the Respondent’s conduct in adopting a domain name identical to the Complainant’s internationally famous trademark, after the Complainant had already established such substantial use and reputation that its mark had become, in effect, a household name, could be regarded in any way as bona fide or legitimate. The Respondent’s adoption of the disputed domain name was clearly calculated to attract Internet users seeking the Complainant’s website. The Respondent was not authorized to use the Complainant’s mark in this way, and such conduct is inherently misleading. As such, it cannot give rise to a right or legitimate interest in the disputed domain name. The Panel draws on analogous panel findings on misleading use in inter alia Robert Bosch GmbH v. Asia Ventures, Inc., WIPO Case No. D2005-0946.

The Panel finds that the Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

The papers filed with the Complaint show that the Respondent appears to have provided false WHOIS contact details upon registration of the disputed domain name. The telephone number corresponds to that of a local directory assistance service, the fax number “1-111-111-1111” is a non-working number, and the postal service was unable to deliver mail to the Respondent’s given address, which was noted as vacant.

It is well-established that the provision of false or inaccurate WHOIS contact details evinces registration in bad faith (see inter alia Telstra Corp. v. Nuclear Marshmallows, WIPO Case No. D2000-0003). The Respondent’s provision of false contact details in this case supports such a finding.

The Respondent has been using the disputed domain name to link to the Complainant’s own website. Inherent in that conduct is the risk that the Respondent may at any time cause Internet traffic to re-direct to a website that is not that of, or associated with, the Complainant. The Respondent’s use thus far has been, in effect, a passive use analogous to that discussed in inter alia Ameriquest Mortgage Co. v. Jason Banks, WIPO Case No. D2003-0293. In that case and in inter alia Telstra Corp. v. Nuclear Marshmallows, WIPO Case No. D2000-0003, other panels have found that passive holding can point to bad faith use in appropriate circumstances.

Given the fame of the Complainant’s MYSPACE trademark, the Panel considers that the Respondent’s passive use of the disputed domain name evinces bad faith use in this case. The Respondent’s passive use reflects, in particular, an intention to exploit the fame and reputation of the MYSPACE mark by attracting Internet users seeking the Complainant’s site. As observed by the Panel in Veuve Clicquot Ponsardin v. The Polygenix Group Co., WIPO Case No. D2000-0163, bad faith may be inferred where a domain name “is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith.

In the Panel’s view, the MYSPACE trademark is so firmly established as the name of the Complainant’s social networking service that the use of the disputed domain name by the Respondent, who is in no way connected with the Complainant, points to an opportunistic intent to exploit the inevitable resulting confusion of Internet users. That the Respondent has so far only used the domain name to point to the Complainant’s own site does not sidestep that conclusion, since the attraction of visitors to the disputed domain name depends on confusion arising as a result of the Respondent’s use.

In the Panel’s view, the evidence is sufficient to support the claim that the disputed domain name was registered and used in bad faith. The Panel so finds.

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 <myspacetv.org> be transferred to the Complainant.


Angela Fox
Sole Panelist

Date: October 17, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1231.html

 

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