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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Rheem Manufacturing Company v. Mario Koch

Case No. D2007-1387

1. The Parties

The Complainant is Rheem Manufacturing Company, of Atlanta, United States of America, represented by Arent Fox LLP, of New York City, United States of America.

The Respondent is Mario Koch, of Ingolstadt, Germany.

2. The Domain Name and Registrar

The disputed domain name <ruuddirect.com> is registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2007. On September 24, 2007, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On September 24, 2007, Tucows 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 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2007. Following informal communications from the Respondent, the proceedings were suspended at the Complainant’s request between October 12, 2007 and October 31, 2007. The extended due date for Response was November 5, 2007. The Respondent did not submit a Response. Accordingly, the Center notified the Respondent’s default on November 6, 2007.

The Center appointed Alan L. Limbury as the sole panelist in this matter on November 13, 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

In the 1880s Edwin Ruud, a Norwegian mechanical engineer, developed the first successful automatic water heater. Since at least 1961 the Complainant and its predecessors have used the RUUD trademark in connection with cooling and heating products for residential and light commercial use. The Complainant is the registered proprietor of several RUUD trademarks in many countries, including Germany, No.1087195, registered on January 28, 1986 for the word “Ruud” in respect of “Gas and/or current operated water heaters and boiler”. The marks have been heavily promoted.

The disputed domain name was registered by the Respondent on March 2, 2007. It resolves to a web site providing numerous “sponsored links” to pornographic and “adult” web sites as well as a search engine by which a search for “Ruud” leads to another part of the web site with hyperlinks to websites offering air conditioning and heating products and services. The web site makes reference to the Complainant and to its competitors. The home page offers the disputed domain name for sale.

5. Parties’ Contentions

A. Complainant

The Complainant’s RUUD marks are well known, if not famous throughout the world.

On June 15, 2006, the disputed domain name was one of two ordered to be transferred to the Complainant by the Panelist in Rheem Manufacturing Company v. Domaincar c/o Perthshire Marketing and Domaincar, WIPO Case No. D2006-0502. The then registrar apparently did not properly transfer the domain name, which lapsed and was grabbed by the Respondent before the Complainant could register it.

The disputed domain name is identical and confusingly similar to the Complainant’s RUUD marks. The Respondent has no rights or legitimate interest in the disputed domain name. The Respondent was fully aware of the Complainant’s rights in the RUUD mark when he registered the domain name. He has not used it in connection with a bona fide offering of goods or services. He is not commonly known by the domain name and is not making any legitimate non-commercial or fair use of it.

The disputed domain name was registered and is being used in bad faith.

The Respondent appears to be the registrant of over 700 domain names, many of which incorporate the trade names and misspellings of names of third parties.

It is inconceivable that the Respondent was unaware of the Complainant’s RUUD marks. He was and is well aware of issues surrounding domain name registrations and thus registered the expired domain name primarily for the purpose to selling, renting or transferring it to the Complainant, even though he has not yet demanded a monetary amount. This conclusion is reinforced by the fact that on October 27, 2000, in Northwest Airlines, Inc., v. Mario Koch, NAF Case No. FA 95688 he was found to have registered and used the domain name <northwest-airlines.com>, which he had advertised for sale, in breach of the Policy.

The Respondent registered the disputed domain name to prevent the Complainant from reflecting its RUUD marks in the corresponding domain name and has engaged in a pattern of such conduct by registering domain names incorporating the trademarks of others in which he has no rights or legitimate interests, including the <northwest-airlines.com> domain name.

Further, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site by suggesting an affiliation or association with the Complainant’s products and by trading upon the image and goodwill associated with the RUUD marks, thus creating a likelihood of confusion with respect to the RUUD marks as to the source, sponsorship, affiliation and endorsement of the corresponding web site and of the products and services offered on the site.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy lists three elements which the Complainant must satisfy in order to succeed.

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

(i) 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.

A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman, WIPO Case No. D2000-1080 and Alta Vista Company v. Grandtotal Finances Limited et al., WIPO Case No. D2000-0848.

A. Identical or Confusingly Similar

The top level domain “.com” is to be ignored for the purpose of determining whether the domain name is identical or confusingly similar to the trademark. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

The descriptive word “direct” does nothing to detract from the distinctiveness of the word “ruud”. As was held by the learned Panelist in Rheem Manufacturing Company v. Domaincar c/o Perthshire Marketing and Domaincar, WIPO Case No. D2006-0502, the word “direct” in the disputed domain name implies that the Complainant’s products are available without the intervention of a retailer or other middle man.

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s RUUD mark.

B. Rights or Legitimate Interests

The RUUD mark is distinctive and widely known. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or a legitimate interest in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The content of the web site to which the disputed domain leads supports a finding that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web site by creating a likelihood of confusion with the Complainant’s RUUD mark as to the source, sponsorship, affiliation and endorsement of the Respondent’s web site and of the products and services offered on that site. Under the Policy, paragraph 4(b)(iv), this is evidence of both bad faith registration and bad faith use.

Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith.

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


Alan L. Limbury
Sole Panelist

Dated: November 27, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1387.html

 

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