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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PRODUITS BERGER v. Whois Service, Belize Domain WHOIS Service
Case No. D2007-1372
1. The Parties
The Complainant is PRODUITS BERGER, Paris, France, represented by NOVAGRAAF, France.
The Respondent is Whois Service, Belize Domain WHOIS service, Mountainview Boulevard, City of Belmopan, Belize.
2. The Domain Name and Registrar
The disputed domain name <lampberger.org> is registered with Domain Contender LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2007. On September 19, 2007, the Center transmitted by email to Domain Contender, LLC a request for registrar verification in connection with the domain name at issue. On September 19, 2007, Domain Contender, LLC transmitted by email to the Center its verification response indicating that the Registrant was not accurately identified in the Complaint and providing the accurate details of the Respondent. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on September 27, 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 September 28, 2007. In accordance with the Rules, paragraph 5(a), the due date for the Response was October 18, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2007.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on October 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 Produits Berger is the holder of numerous Trademark registrations for the Trademark LAMPE BERGER whether as a word mark or a logo. Such registrations include a number of United States of America Trademark Registrations, Canadian Trademark Registrations, French Trademark Registrations as well as European Community Trademark Registrations and various International Trademark Registrations designating a wide range of countries and territories; the majority of these registrations date back to dates prior than the creation of the disputed Domain Name <lampberger.org>. Also, the Complainant holds domain name registrations with the word <lampeberger> in the main generic Top Level Domains and various country code Top Level domains.
The Complainant offers a wide range of perfumery and air freshener lamp collections with decorative (lamps disseminating scents) elements through its websites, and appears to be known on a world wide basis.
The disputed Domain Name <lampberger.org> was created on February 4, 2006. The disputed Domain Name resolves to a website that includes a directory of “lamps” in various categories and listing of lamps providers.
5. Parties’ Contentions
The Complainant contends the disputed Domain Name <lampberger.org> is identical or confusingly similar to the Complainant Trademark LAMPE BERGER, as visually, the omission of the letter “e” in the middle of the word does not amount to a significant change to eliminate confusion. The Complainant also contends that the addition of the suffix “.org” is not and should not be taken into consideration while assessing confusing similarity between the Trademark and the disputed Domain Name. Moreover, the Complainant argues that in this particular case, the likelihood of confusion is high because of the goodwill and reputation of the Trademark LAMPE BERGER.
The Complainant also contends that the Respondent has no rights or legitimate interest in the disputed Domain Name due to the following reasons:
- the Respondent is not related to Complainant’s business nor does he hold a license or any permission to use the Complainant’s Trademark as part of his Domain Name;
- The Respondent is not authorized to advertise through the Complainant’s website;
- The Respondent has not been commonly known by the name Lampe Berger and has no right or legitimate interest to use it since it does not correspond to its corporate name, nor does he own a corresponding trademark;
- The Respondent registration of the disputed Domain Name is made with intent for commercial gain or to tarnish the Complainant’s Trademark; and
- The Respondent has registered the disputed Domain Name in order to divert consumers and to prevent the Complainant from reflecting the mark in a corresponding domain name.
The Complainant contends that the disputed Domain Name was registered and is being used in bad faith, due to the following reasons:
- The Respondent, at time of registration, must have been aware of the Complainant’s Trademark and that by registering the disputed Domain Name, he was infringing on the Complainant’s Trademarks;
- The fact that the disputed Domain Name was transferred several times to different registrants indicates bad faith; and
- The Respondent’s website offers various links to other websites promoting and selling the Complainant’s and / or counterfeiting products, which demonstrates that the Respondent intentionally attempted to attract for commercial gain Internet users to the other website and diverting the business of the Complainant by creating a likelihood of confusion with the Complainant’s mark or to the source, sponsorship, affiliation or endorsement of the Respondent’s website and that the Respondent is most likely receiving click through fees for every hit directing the user to the sponsored websites, and in doing so, the Respondent engaged in what is commonly known as “typosquatting”.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the disputed Domain Name is confusingly similar to the trademarks in which the Complainant has rights. The disputed Domain Name <lampberger.org> fully incorporates the trademark LAMPE BERGER, of which the Complainant holds various trademark registrations as explained under Section 4 above, whether as a word mark or as a logo.
The omission of the letter “e” from the end of the first suffix in the Domain Name constitutes an apparent case of “typosquatting”, which evidently results in creating confusion among the users of the Internet, who may easily make the mistake of misspelling the Trademark of the Complainant.
Typosquatting or the obvious misspelling of trademarks in domain names has been considered as constituting confusing similarity by many WIPO UDRP Panels; such Decisions include Nationwide Mutual Insurance Company v. Forum LLC,
WIPO Case No. D2006-0309, Mejeriforeningen Danish Dairy Board v. Spiral Matrix,
WIPO Case No. D2006-0233, Sierra HealthStyles LLC v. Modern Limited - Cayman Web Development,
WIPO Case No. D2006-0020, and many others.
Consequently, the Panel finds for the Complainant on the first element of the Policy
B. Rights or Legitimate Interests
The Panel finds that the Respondent under this case lacks rights or legitimate interests in the disputed Domain Name.
As indicated above, the Complainant has demonstrated that it has developed considerable goodwill in the Trademark LAMPE BERGER and demonstrated that the Trademark, which it has not authorized the Respondent to use, has gained world wide fame.
In the absence of any contention of these facts by the Respondent, the Panel considers that the Complainant has made a prima facie case of lack of rights or legitimate interest on part of the Respondent, particularly, in the absence of any license from the Complainant to use the Trademark on its website, or in any other way. See Inter-IKEA Systems B.V. v. Evezon Co. Ltd.,
WIPO Case No. D2000-0437.
Moreover, the Panel is convinced that the use of the disputed Domain Name by the Respondent in this manner does not qualify as a legitimate interest, since the Respondent is using the disputed Domain Name to provide a click through service to websites, which offer competing products with those of the Complainant’s.
Various WIPO Panels have held that such sites providing click-through sponsored links to other websites do not grant the registrant rights or legitimate interests in the domain name. See MBI, Inc. v Moniker Privacy Services/Nevis Domains LLC,
WIPO Case No. D2006-0550 and Royal Bank of Canada v Henry Chan,
WIPO Case No. D2003-0031 and The Knot, Inc. v. Ali Aziz,
WIPO Case No. D2007-1006.
In light of the Respondent’s failure to respond to the Complaint, no information has been provided to the Panel to demonstrate preparation to use the Disputed Domain Name for a bona fide offering of goods or services and considering that there is no evidence that the Respondent is not commonly known by the disputed Domain Name, the Panel finds that the Complainant satisfies the requirements of Paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purposes of the Policy, bad faith may be determined by evaluating four factors, which are mentioned in the policy on a non-exhaustive basis (Policy – Paragraph 4(b));
(i) circumstances indicating that the registrant 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 the registrant’s documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant has 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 registrant has engaged in a pattern of such conduct; or
(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s 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 the registrant’s website or location or of a product or service on the registrant’s website or location.
Considering the facts of this case, the Panel is convinced, on a balance of probabilities, that bad faith according to factors (iii) and (iv) can reasonably be inferred; the fact that the Respondent is using the domain name to provide a directory of competing sites specialized in the different types of lamps, supports the finding of constructive knowledge on part of the Respondent of the good will of the Complainant. Therefore, the Panel believes that the Disputed Domain Name <lampberger.org> was registered to disrupt the business of the Complainant, by directing consumers to competing websites, and/or for the purpose of commercial gain and by creating a likelihood of confusion with the complainant’s mark, especially given that the Respondent is not known by the disputed Domain Name, nor does he have legitimate rights therein. While the Complainant does not provide clear evidence of the commission that the Respondent is allegedly receiving for the click-through service that he is providing through its website, the Panel accepts the allegation of the Complainant in this regard on a balance of probabilities, considering that this is a typical arrangement for such directory websites. This conclusion is made particularly probable in the absence of a rebuttal from the Respondent.
A number of previous WIPO UDRP Decisions concluded that the use of a domain name to redirect Internet users to websites of competing organizations constitutes bad faith registration and use under the Policy. Such Decisions include Check Into Cash, Inc. v. Rico Marquez,
WIPO Case No. D2007-0942, Edmunds.com, Inc. v. Ult. Search Inc.,
WIPO Case No. D2001-1319, Verisign, Inc. v. jumbo domains,
WIPO Case No. D2006-1582.
Considering the above, and on a balance of probabilities, the Panel finds that the Respondent did register and is using the Disputed Domain Name in bad faith.
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 <lampberger.org> be transferred to the Complainant.
Nasser A. Khasawneh
Dated: November 7, 2007