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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Trader Corporation v. Corinne Sims

Case No. D2007-1378

1. The Parties

The Complainant is Trader Corporation, of Verdun, Quebec, Canada, represented by Lang Michener, Canada.

The Respondent is Corinne Sims, of New York, United States of America.

2. The Domain Name and Registrar

The disputed domain name <tradercorporations.com> is registered with TierraNet d/b/a DomainDiscover.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 15, 2007. On September 19, 2007, the Center transmitted by email to TierraNet d/b/a DomainDiscover a request for registrar verification in connection with the domain name at issue. On September 20, 2007, TierraNet d/b/a DomainDiscover 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 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 14, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 16, 2007.

The Center appointed David Perkins as the sole panelist in this matter on October 25, 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.

On September 26, 2007, the Complainant’s counsel emailed the Center reporting a telephone call received by them on September 25, 2007 from an individual named Joseph Sims, who claimed to be the Respondent’s husband. Mr. Sims advised that Mrs. Sims had received the Complaint. He said that Mrs. Sims had not registered the domain name in issue, <tradercorportions.com>, nor did she have any idea who might be behind the domain name registration or the website to which it resolved. However, in the event, as noted above, no Response was received, nor did the Center receive any communication from the named Respondent.

4. Factual Background

4.A. The Complainant

Corporate History

4.A.1 The Complainant, Trader Corporation was incorporated as Canada Inc. on May 19, 2006, and changed its name to its current name on June 6, 2006.

4.A.2 On June 8, 2006, Trader Corporation amalgamated with Classified Media (Canada) Holdings Inc (also known as Trader Canada) and continued under the same name, Trader Corporation.

4.A.3 On January 1, 2007, Trader Corporation amalgamated with, inter alia, Trader Publications Corp. and Trader Media Corp, the combined company continuing under the same name, Trader Corporation.

4.A.4 Trader Corporation is owned by Yellow Pages Income Fund.

Complainant’s Business

4.A.5 The Complainant publishes approximately 200 publications and maintains 20 websites, which cover four product areas. Those areas are (1) automotive, (2) real estate, (3) general merchandise and (4) employment. The weekly readership of its publications is approximately 1 million and it attracts some 3.5 million visitors to its network of websites. The Complainant’s business covers Canada and three US states, namely Indiana, Kentucky and Tennessee.

4.A.6 A number of its publications incorporate the word “Trader”, some as a prefix and others as a suffix. Examples of the former are Trader Direct, Trader J’affiche and Trader Showcase. Examples of the latter are Auto Trader, Truck Trader and Agriculture Trader.

4.A.7 The websites include “www.trader.ca”, “www.traderauctions.ca”, “www.traderdistributionservices.ca”, “www.canadatrader.com” and “www.autotrader.ca”.

Complainant’s TRADER trademark registrations

4.A.8 The Complainant is the proprietor of the following registered trademark

Country

Registration

Mark

Class(es)

Date(s) of Application and Registration

Canada

396,197

TRADER

16

January 30, 1990

March 27, 1992

That registration was originally owned by Trader Publications Corp (with which the Complainant amalgamated on January 1, 2007: see, paragraph 4.A.3 above). Use of the TRADER trademark for publications dates from June 1978.

4.A.9 The Complainant also owns a further 31 Canadian trademarks, all of which were registered before the domain in issue (on July 30, 2007) and all of which incorporate the word “TRADER” as part of the mark. For example, AUTO TRADER, COTTAGE TRADER and BOAT TRADER.

4.A.10 The Complainant is also the proprietor of an additional 19 pending trademark applications which incorporate the word “TRADER”. Examples of such applications include AGRICULTURE TRADER and TRADER DISTRIBUTION SERVICES.

Complainant’s common law TRADER trademarks

4.A.11 The Complainant claims common law trademark rights in the names TRADER CORPORATION and its French language equivalent SOCIЙTЙ TRADER, in respect of which applications for Canadian registered trademarks were filed on February 19, 2007 based on use since June 2006. Those applications are for (1) printed publications and (2) for classified advertising services.

4.A.12 On June 8, 2006 – over a year before the domain name in issue was created – the Complainant registered the domain names <tradercorporation.com>, <tradercorporation.ca>, <societetrader.com> and <societetrader.ca>. The first two such domain names resolve to Complainant’s “www.ypg.com/page.php./en/6/1.html” website and the latter two to its French language website at “www.ypg.com/page/php/fr/6/1.html/”. Those websites respectively display prominently the common law trademarks asserted by the Complainant, TRADER CORPORATION and SOCIЙTЙ CORPORATION.

4.A.13 Examples are exhibited to the Complaint of use of the trademarks TRADER CORPORATION and SOCIЙTЙ TRADER at the “www.ypg.com” website. YPG is an acronym for Yellow Pages Group, a member of the Group of companies owned by the Complainant’s parent company, Yellow Pages Income Fund. Those websites in turn direct visitors to others of the Complainant’s websites, including “www.trader.ca”. That website in turn directs visitors to other websites of the Complainant, inter alia, in the automotive sector, for example “www.traderauctions.ca” and “www.traderdistributionservices.ca” (referred to in paragraph 4.A.7 above).

4.B The Respondent

4.B.1 Nothing is known of the Respondent, save that according to one, Joseph Sims, she is neither the registrant of the domain name in issue nor is she concerned with the website to which it resolves.

The Respondent’s Website

4.B.2 The domain name in issue resolves to a webpage, which is an exact reproduction of the English language version of the Complainant’s “Trader Corporation” webpage to which the <ypg.com> domain resolves (as explained in paragraph 4.A.13 above) but for the addition of the following:

“Trader Corporation has started in 2006 a program to help protect buyers against fraud and misrepresentation, Business Protection Program that is provided for free on all eligible capital equipment transactions completed on the Trader Corporation sites on or after April 15, 2006. The program offers coverage up to $25,000. Click here for Program and Terms.”

4.B.3 That link “Program and Terms” leads to a website, which describes the Business Protection Program. Although it is said that the Program is offered by the Complainant, in fact it is neither offered by nor associated with the Complainant in any way. There are four such links each of which use the domain name in issue. They are

“http://www.tradercorporations.com/bpp/overview.html”;

“http://www.tradercorporations.com/bpp/coverage.html”:

“http://www.tradercorporations.com/bpp/eligibility.html”; and

“http://www.tradercorporations.com/bpp/how-to-file.html”.

4.B.4 Except for the hyperlink “Click here for Program and Terms” at the webpage to which the domain name in issue resolves, visitors to that website who click onto the links “Site Map”, “Franзais”, “Company Overview”, “Management Team”, “Our Publications”, “Our websites” and “Legal Notice” are taken to the legitimate pages of the Complainant’s website. Hence, the webpage to which the domain name in issue resolves has all the appearances of – but is not – the Complainant’s website.

5. Parties’ Contentions

5.A The Complainant

5.A.1 Identical or Confusingly Similar

5.A.1.1 The Complainant’s case is that the domain name in issue is confusingly similar to its TRADER registered trademark and to its common law trademarks, TRADER CORPORATION and SOCIЙTЙ TRADER.

5.A.1.2 The domain name in issue is identical to the common law trademark TRADER CORPORATION save for the addition of the latter “s” to “Corporation” and the fact that there is no space between the two words comprising the trademark. In that respect, the Complainant cites Trader Corporation v. Carlos Lorio, WIPO Case No. D2007-1041, where the domain names in issue were <tradercorporation.net> and <trader-corporation.net>; General Electric Company v. John Bakhit, WIPO Case No. D2000-0386, where the domain name was <general-electric.com>; Tata Tea Ltd v. Gem Lifts Ltd., WIPO Case No. D2000-1823, where the domain name was <tatatea.com> and Club Mйditerranйe v. Yosi Hasidim, WIPO Case No. D2000-1350, where the domain name was <club-med.com>.

5.A.1.3 The Complainant also relies upon the domain name in issue differing from the TRADER registered trademark by only the addition of the generic word “Corporation”, which the Complainant says is not sufficient to avoid a finding of confusing similarity under paragraph 4(a)(i) of the Policy. In that respect, the Complainant cites Trader Corporation v. Daryl Erdmann, WIPO Case No. D2007-0839, where the domain name in issue was <trader-corporation.com>; Trader Corporation v. Carlos Lorio, WIPO Case No. D2007-1041 referred to in the preceding paragraph; CHANEL, INC. v. ESTCO TECHNOLOGY GROUP, WIPO Case No. D2000-0413, where the domain names were <chanelstore.com> and <chanelfashion.com>; Allianz A.G. v. Marian Dinu, WIPO Case No. D2006-0318, where the domain name was <europealliance.com>, a geographical indicator plus the English translation of the ALLIANZ trademark; Harrods Ltd v. Peter Pierre, WIPO Case No. D2001-0456, where the domain names were <harrodsstores.com> and <harrodsdepartmentstores.com>; and Sallie Mae, Inc. v. Chen Huang, WIPO Case No. D2004-0880, where the domain name was <salliemaestudentloans.com>.

5.A.1.4 The Complainant also asserts that the domain name in issue is the English language version of its SOCIЙTЙ TRADER common law trademark, citing in that respect the Allianz case, supra (referred to in the preceding paragraph).

5.A.2 Rights or Legitimate Interests

5.A.2.1 Complainant asserts that there is no evidence of any of the circumstances set out in paragraph 4(c) of the Policy which could demonstrate the Respondent’s rights to and legitimate interests in the domain name in issue. Specifically, there is no evidence of the domain name being used in relation to a bona fide offering of goods or services. For the reasons explained (in paragraph 4.B.3 and 4 above), Complainant contends that the reverse is the case.

5.A.2.2 Nor is there any evidence that the Respondent has been commonly known by the domain name. Certainly, the Respondent is not licensed or otherwise authorized by the Complainant to use either of its TRADER or TRADER CORPORATION trademarks.

5.A.2.3 The Complainant also asserts that Respondent’s use of the domain name in issue is neither a legitimate noncommercial nor a fair use. On the contrary, it is – the Complainant says – designed for commercial gain to misleadingly divert consumers for the purpose of perpetrating a fraud on them and thereby tarnish the Complainant’s TRADER and TRADER CORPORATION trademarks.

5.A.2.4 The Trader Corporation case, supra (referred to in paragraph 5.A.1.2 above) involved precisely the same facts as in this case. There the domain names in issue resolved to a facsimile of the Complainant’s website but for the addition of the same words as set out in paragraph 4.B.2 above. The panel was forthright in its decision in that case in finding the complainant’s case under paragraph 4(a)(ii) of the Policy proved.

5.A.3 Registered and Use in Bad Faith

5.A.3.1 The Complainant’s case is that the circumstances in paragraph 4(b)(iv) apply to the facts here. The operation of the website to which the domain name resolves, which is explained in paragraph 4.B.3 and 4 above, exemplifies bad faith use of the domain name.

5.A.3.2 The Complainant says that it has received customer queries regarding the “Business Protection Program” and has been told by prospective purchasers of goods advertised in its publications that they have been contacted by persons (clearly, on behalf of the Respondent) suggesting that the prospective purchaser should find out more about how the Complainant will handle a transaction by emailing “transactions@tradercorportions.com” and visiting the website at “www.tradercorporations.com/bpp/overview.html”.

5.A.3.3 As to the Respondent’s motive, the Complainant speculates that it may be to obtain fraudulently private financial and/or other personal information from the Complainant’s customers who are misleadingly tricked into believing they are dealing with the Complainant. This is sometimes known as “phishing”. Or, it may be an attempt by the Respondent to extract money from the Complainant by purchasing the domain name for a substantial profit to the Respondent merely to put an end to the disruptive effect that the Respondent’s bad faith use of the domain name is having on the Complainant’s business.

5.A.3.4 This is, the Complainant explains, the third instance of bad faith use being made of domain names which are confusingly similar to its TRADER and TRADER CORPORATION trademarks. In addition to Trader Corporation, supra (referred to in paragraph 5.A.2.4 above), precisely the same webpage offering the “Business Protection Program” was used by the Respondent in Trader Corporation v. Daryl Erdmann, WIPO Case No. D2007-0839 where the domain name in issue was <trader-corporation.com> (see, paragraph 5.A.1.4 above). The inference the Complainant draws is that the person ultimately responsible for these fraudulent activities is using false or stolen identities and personal information to register the domain names, a practice which is itself evidence of bad faith registration and use.

5.B The Respondent

As stated, not only has no Response been submitted but it appears that the Respondent herself has absolutely no connection with the domain name in issue or the websites to which it resolves: see, paragraph 3 above.

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding:

(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in

respect of the domain name; and

(iii) that the domain name has been registered and is being used in

bad faith.

6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent’s rights or legitimate interest in the domain name in issue.

6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.

6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognises that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.

A. Identical or Confusingly Similar

6.5 The Panel has no hesitation in finding that this requirement of the Policy is met. The Complainant is the proprietor of the registered trademark TRADER in Canada and may have acquired common law rights in the trademark TRADER CORPORATION also, notwithstanding that the two component elements are individually generic / descriptive words. Complainant has pending Canadian trademark applications for TRADER CORPORATION and its French language equivalent, both applications being based on use since June 2006 and both applications being filed before registration of the domain name in issue.

6.6 The registered TRADER Canadian trademark claims use dating back to 1978 and the mere addition to that trademark of the generic word “Corporation” to form the domain name in issue does not avoid confusing similarity as that concept has been developed in many decisions under the Policy.

B. Rights or Legitimate Interests

6.7 The Panel is satisfied that the Complainant has made out a prima facie case in relation to the second element of the Policy. In the absence of a Response, there is not a scintilla of evidence to demonstrate that the Respondent could have rights to or legitimate interests in the domain name in issue. Indeed, the evidence – set out in paragraphs 4.B.2 to 4, 5.A.2 and 5.A.3 above – is overwhelmingly against the possibility that such rights or interests could exist. Accordingly, the Panel finds that Complaint satisfies the second requirement of the Policy prescribed by paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

6.8 Again, the evidence is all one way. The facts as stated in paragraphs 4.B.2 and 5.A.3 above plainly establish the circumstances set out in paragraph 4(b)(iv) of the Policy as establishing bad faith registration and use. Consequently, the Panel finds that Complaint meets the twin requirements of paragraph 4(a)(iii) of the Policy.

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, <tradercorporations.com> be transferred to the Complainant.


David Perkins
Sole Panelist

Dated: November 6, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1378.html

 

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