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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sprint Communications Company L.P v. Domain Plus Corporation

Case No. D2007-1335

1. The Parties

The Complainant is Sprint Communications Company L.P, Overland Park, Kansas, United States of America, represented internally.

The Respondent is Domain Plus Corporation, Roseau Valley, Dominica.

2. The Domain Name and Registrar

The disputed domain name <sprintwireless.com> (the “Disputed Domain Name”) is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 6, 2007. On September 12, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the Disputed Domain Name. On September 13, 2007, Moniker Online Services, 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 September 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 17, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2007.

The Center appointed Michael D. Cover as the sole panelist in this matter on October 29, 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, a Delaware Limited Partnership, is a subsidiary of Sprint Nextel Corporation and is the owner of the SPRINT trademarks for telecommunication services. The Complainant has, by itself or through its licencees, used the SPRINT trademark in connection with telecommunication goods and services continuously since 1977. The Complainant’s earliest United States of America trademark registration is No. 1,104,943 SPRINT filed April 11, 1977 and registered October 24, 1977. First use in commerce is noted as February 4, 1977. It is registered for “Communication Services – namely providing a telecommunications network for use by others”.

The Disputed Domain Name is used in connection with a website that features products and services and accessories for mobile telephones. Annex D to the Complaint illustrates this. The Panel notes that the mark SPRINT is mentioned on the screen grab of “www.cellphones.li” at Annex D. The Disputed Domain Name on entry redirects to another URL, “www.cellphones.li”, which also is owned by the Respondent.

5. Parties’ Contentions

A. Complainant

The Complainant states that the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, namely SPRINT. It also submits that SPRINT is a famous trademark and that there is no evidence that the Respondent’s use of the domain name has been authorised by the Complainant.

With regard to bad faith, the Complainant states that the Disputed Domain Name should be considered as having been registered and used in bad faith, because the Respondent is intentionally using the Disputed Domain Name to attract Internet users to the site and that it is creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location of a product or service on the Respondent’s website or location. The Complainant states that it has received complaints from its customers that prior owners of the website of the Disputed Domain Name or their agents have used an automated dialler for call solicitation to Complainant’s customers. The Complainant states that it attempted to contact the prior owners but received no reply.

The Complainant requests that the Panel issue a decision that the Disputed Domain Name be transferred to the Complainant.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has a near thirty year-old United States of America trademark registration, a trademark or service mark, in which it has rights. The trademark has been in use, at least in the United States of America, since 1977, ample time to build up common law rights. The Complainant maintains that SPRINT is a famous trademark. Thirty years’ use, even in one jurisdiction, is ample to establish common law rights.

The Complainant’s mark, SPRINT, is comprised in the Disputed Domain Name. Whilst the Complainant’s mark is not identical with the Disputed Domain Name, it has been well established in numerous WIPO decisions under the UDRP that the addition of a non-distinctive suffix does not preclude the confusing similarity.

The Panel accordingly finds that the Disputed Domain Name is confusingly similar to a trademark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Respondent had not filed a Response and has not attempted to establish its rights or legitimate interests in the Disputed Domain Name. Whilst the burden of proof is on the Complainant, the Complainant is required to make out a prima facie case that the Respondent lacks rights or legitimate interests. (See Croatia Airlines d.d. v. Modern Europe Internet, WIPO Case No. D2003-0455).

In this case, the Panel finds that the Complainant has made such a prima facie case. The Complainant has no relationship with the Respondent and has never authorised the Respondent to use the Disputed Domain Name. In addition, it is not disputed that SPRINT is a famous trademark.

Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances that can be shown by the Respondent in order to demonstrate its rights or legitimate interests in the Disputed Domain Name. These are:

- (Demonstrable preparations to) use the domain name is connection with a bona fide offering of goods or services prior to the dispute.

- An indication that the Respondent has been commonly known by the Disputed Domain Name even if it has no trademark rights.

- Legitimate non-commercial or fair use of the domain name without intent to divert consumers or tarnish the trademark.

The Respondent having not filed a response means that it has not taken the opportunity to rebut the prima facie case of the Complainant. The Panel accordingly finds for the Complainant on this point.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.

Of these, paragraph 4(b)(iv) is the most relevant here. This provides:

“(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 or your website or location of a product or service on your website or location”.

The link to the website “www.cellphones.li”, also at a domain name owned by the Respondent, indicates a clear attempt to take advantage of the confusion between the Disputed Domain Name and the Complainant’s rights. The Complainant asserts such confusion, although it does not further support such assertion with evidence, but this assertion has not been challenged.

The Disputed Domain Name was registered in 2001, well after the Complainant’s trademark was registered in 1978 and well after the Complainant started use of its trademark in 1977. The assertion that the Complainant’s trademark is a famous trademark is not challenged. The Panel finds it is impossible to conceive of a good faith use of the Disputed Domain Name in the circumstances of this case.

The Panel accordingly finds for the Complainant on the issue of bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <sprintwireless.com> be transferred to the Complainant.


Michael D. Cover
Sole Panelist

Dated: November 12, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1335.html

 

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