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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Deutsche Telekom AG v. Piotr Rusinowski

Case No. D2007-1707

1. The Parties

The Complainant is Deutsche Telekom AG of Germany, represented by Lovells, Germany.

The Respondent is Piotr Rusinowski of Poland.

2. The Domain Name and Registrar

The disputed domain name <t-mobiletv.mobi> is registered with Key-Systems GmbH dba domaindiscount24.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2007. On November 22, 2007, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On November 26, 2007, Key-Systems GmbH dba domaindiscount24.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 December 3, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was December 23, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 24, 2007.

The Center appointed Adam Taylor as the sole panelist in this matter on January 10, 2008. 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 is Europe’s largest telecommunications company. Over the past two years the Complainant has completed or initiated transactions amounting to 66 billion dollars. The Complainant serves customers in more than 65 countries and has more than two million shareholders.

The Complainant’s subsidiary T-Mobile International AG & Co. KG is one of the largest GSM mobile communications providers in the world.

The Complainant is internationally known as “T-Mobile”, which is the corporate name under which the Complainant’s business in the mobile communications sector is conducted.

The Complainant has registered a large number of national, Community and international trademarks reflecting the term “T-Mobile” including a Community Trade Mark for the word “T-Mobile” registration no. 00485441 dated February 26, 2007, in classes 9, 14, 16, 18, 25, 28, 36, 37, 38, 41 and 42.

The Respondent registered the disputed domain name on November 22, 2006.

As of November 9, 2007, the disputed domain name resolved to a holding web page stating “This domain is for sale”.

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trade mark “T-MOBILE”.

Since domains under the extension “.mobi” were especially created for use on mobile devices the addition of the term “TV” indicates that mobile TV is offered by the Complainant under this domain, which is in fact not the case. The term “TV” does not have any distinctive character and does therefore not reduce the existing risk of confusion.

According to previous UDRP decisions the first level domain does not influence the consideration of similarity.

Rights or Legitimate Interests

The Complainant contends that the Respondent is not, and never has been, a representative or licensee of the Complainant, nor is the Respondent otherwise authorized to use the Complainant’s marks.

The Respondent has no rights or legitimate interests in respect of the disputed domain names. In particular, none of the circumstances listed under paragraph 4 (c) of the Policy apply.

The Respondent is not commonly known by the disputed domain name.

The Respondent does not use the disputed domain name for a bona fide offering of goods and services, nor is there any evidence of demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services. Entering the disputed domain name as a URL-address brings up a notice informing internet users that the disputed domain is for sale.

There is no indication that the Respondent was known by the name “T-Mobile” prior to the registration of the domain name nor has the Respondent acquired any trademark or service mark rights.

Finally, there is no indication of any legitimate noncommercial or fair use of the domain name, as it is for sale.

Registered and Used in Bad Faith

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

The Respondent had knowledge of the Complainant’s trademarks and business names when he registered the domain name. The Complainant’s T-MOBILE trademarks are considered well-known marks worldwide according to previous WIPO decisions eg Deutsche Telekom AG v. Pimptel Inc., WIPO Case No. D2005-0928.

The disputed domain name is used to offer the sale of the domain. Therefore the Respondent has intentionally registered 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 to a competitor of the Complainant in accordance with the Policy, paragraph 4(b)(i).

The Respondent seems to expect the Complainant to make a money offer as the Complainant appears to be the most likely purchaser (if not the only likely purchaser) with a legitimate interest.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant undoubtedly has rights in the mark T-MOBILE by virtue of its many registered trademarks as well as its extensive worldwide trading activities under that name.

Disregarding the domain suffix, the disputed domain name differs from the Complainant’s trademark only by the addition of the generic term “TV”. This is insufficient to differentiate the domain name and trademark; rather, it enhances the connection as it is indicative of mobile television service offered by the Complaint.

The Panel concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Panel therefore finds that the Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.

The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.

As to paragraph 4(c)(i) of the Policy, there is no evidence of any bona fide offering of goods and services, nor is there any evidence of demonstrable preparations to use the domain name in connection with such an offering.

Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.

The Panel finds that the Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.

The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of the Policy.

C. Registered and Used in Bad Faith

The Panel thinks it inconceivable that the Respondent was unaware of the Complainant when it registered the disputed domain name consisting of the Complainant’s famous trademark plus the generic term “TV”.

The Respondent has not come forward to offer any explanation for its registration of the domain name and the record shows that its only use of the domain name has been to resolve to a web page offering the domain name for sale.

The Panel finds that these circumstances indicate that the Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name to the Complainant. Further, it is a reasonable inference in the circumstances of this case that the consideration sought by the Respondent was an amount in excess of the Respondent’s out-of-pocket costs directly related to the domain name. This inference was not challenged by the Respondent.

Accordingly, the Panel is satisfied that paragraph 4(b)(i) of the Policy applies and therefore concludes that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant has established the third element 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, <t-mobiletv.mobi> be transferred to the Complainant.


Adam Taylor
Sole Panelist

Dated: January 23, 2008.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1707.html

 

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