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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nokia Corporation v. Kai Oeistaemoe

Case No. D2007-1738

1. The Parties

The Complainant is Nokia Corporation, Finland, represented by Benjon Oy, Finland.

The Respondent is Kai Oeistaemoe, Nokia Corporate, Finland.

2. The Domain Name and Registrar

The disputed domain name <nokia-corporate.com> is registered with Schlund + Partner.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2007. On November 27, 2007, the Center transmitted by email to Schlund + Partner a request for registrar verification in connection with the domain name at issue. On November 28, 2007, Schlund + Partner 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 27, 2007.

The Center appointed Jonas Gulliksson as the sole panelist in this matter on January 7, 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 Complaint is the holder of the trademark NOKIA. The mark is registered e.g. as a Community Trademark under number 4035663, filed on September 23, 2004, covering all the goods and services in international classes 1 - 45.

The mark NOKIA is a well-known mark as stated in several panel decisions (see e.g. Nokia Corporation v. Durmus Dalda, WIPO Case No. D2006-0931, Nokia Corporation v. Horoshiy, Inc. and LaPorte Holdings, WIPO Case No. D2004-0851, Nokia Corporation v. Uday Lakhani, WIPO Case No. D2000-0833, Nokia Corporation v. Private, WIPO Case No. D2000-1271, Nokia Corporation v. Mr. David Wills, WIPO Case No. DWS2001-0004, Nokia Corporation v. Nokia Ringtones & Logo Hotline, WIPO Case No. D2001-1101, Nokia Corporation v. Dewey Oates, WIPO Case No. D2001-1176, Nokia Corporation v. Nick Holmes, WIPO Case No. D2002-0001, Nokia Corporation v. Wawesrnultimedia, WIPO Case No. D2002-0130, Nokia Corporation v. Marlon Sorken, WIPO Case No. D2002-0276).

The Mark NOKIA is registered in more than 170 countries throughout the world with the first filing of the mark NOKIA going back to 1960s which shows the intensity and geographical extent of use as well as speaks for the investment made in protecting the mark.

The mark NOKIA has been ranked by Interbrand as the fifth of the world’s most valuable brands in 2007. An article in the Business Week 6 August 2007 states that the value of the brand NOKIA was 33,696 million US dollars in 2007 (30,131 million US dollars in 2006).

NOKIA has been the name of the Complainant since 1871. The Complainant is one of the world’s leading mobile phone and communications systems company. The website “www.nokia.com” is the Complainant’s website.

The disputed domain name was registered on July 23, 2007.

5. Parties’ Contentions

A. Complainant

The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights

The disputed domain name <nokia-corporate.com> is identical or confusingly similar to the trademarks and the trade name of the Complainant. The disputed domain name incorporates in its entirety this distinctive and well-known mark. The simple addition of the generic word “corporate” is not sufficient to distinguish the disputed domain name from the Complainant’s mark because (a) it directly describes the Complainant’s business name, i.e. Nokia Corporation, and (b) the disputed domain name would be perceived by Internet users as referring to the name of the Complainant because they cannot distinguish it from the business name of the Complainant. The mark NOKIA clearly remains the dominant and distinctive element of the disputed domain name. The insertion of a hyphen between NOKIA and “corporate” does not lessen the danger of confusion between the trademark of the Complainant and the disputed domain name. Instead the word “corporate” attached to mark increases confusion in emphasizing an association with the Complainant’s trade name, i.e. Nokia Corporation. (For example, see Nokia Corporation v. United Digital, WIPO Case No. D2001-1176. In that case the use of the words “ring tones” and faceplates” with the Complainant’s mark NOKIA were found to create a stronger argument for confusing similarity.)

The Complainant owns and operates website <nokia.com>. In a web page Nokia -About Nokia the words “Nokia Corporate” have been used as a link to the main page of the website. Internet users are therefore likely to assume that the domain

<nokia-corporate.com> would also belong to the Complainant.

The Respondent has no rights or legitimate interests in respect of the domain name

According to the Complainant’s information and belief, the Respondent does not have rights or legitimate interests in the domain name and has not registered it as a trademark, service mark or company name anywhere in the world. The Respondent has not used the mark for offering of goods or services and the Respondent is not commonly known by the name NOKIA or NOKIA-CORPORATE. The Complainant has not licensed or otherwise permitted the Respondent to use the trademark NOKIA.

There is no relationship between the Complainant and the Respondent. The Respondent has been registered as Kai Oeistaemoe from Nokia Corporate, address P.O. Box 226, FI-00045, Finland, the telephone number being +358.718008010. Mr. Kai Цistдmц is the Executive Vice President of the Complainant. He has not made the registration in question.

The national letters “д” and “ц” are often written out as “ae” and “oe” in international context due to the fact that the letters “д” and “ц” are not usually available. The post address of the Complainant, as mentioned above, is P.O. Box 226, FI-00045 Nokia Group, Finland, the telephone number being +358 (0) 7180 08000. There is only one number difference between the telephone numbers of the Complainant and the Respondent. Moreover, the telephone number of the Respondent is not in use.

It is clear that the Respondent has registered the disputed domain name in bad faith using the identity of a high official of the Complainant. This shows also that the Respondent is not an entity engaged in bona fide commercial or legitimate non-commercial activity.

There are several prior panel decisions where the panels have held that taking a registered trademark and combining it with a word that associates the domain name with the business of the owner of the trademark does not provide any rights to respondents. Such combinations have been considered as confusingly similar to the trademarks. Merely including the word “corporate” with the well-known trademark NOKIA, which users could logically use when looking for the Complainant’s website (i.e. combining it with the trademark NOKIA), is not sufficient to exclude likelihood of confusion. If anything, the addition of the word “corporate” reinforces the association of the Complainant’s trademark, its services and the domain name. See e.g. Chanel, Inc. v. Uraina Heyward, WIPO Case No. D2000-1802; Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137; Advance Magazine Publishers, Inc, v. Lisa Whaley d/b/a GQ Kids and Kid Elegance, WIPO Case No. D2001-0248; Chanel, Inc. v. Estco Technology Group, WIPO Case No. D2000-0413; Chanel, Inc. v. Cologne Zone, WIPO Case No. D2000-1809; Viacom International, Inc. v. Matrix Management and T. Parrot, WIPO Case No. D2001-1442; Park Place Entertainment Corporation v. Bowno, WIPO Case No. D2001-1410.

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

The Complainant contends that, as stated above, the Respondent has identified himself as being the Executive Vice President of the Complainant. Thus he has given false contact information and registered the disputed domain name in bad faith.

Regarding the domain name being used in bad faith, as it is stated in Telstra Corporation Limited v. Nuclear Marshmallows; WIPO Case No. D2000-0003, it is not necessary that the Respondent is undertaking positive action in bad faith in relation to the disputed domain name. The concept of a domain name “being used in bad faith” is not limited to positive action, because inaction is within the concept. A passive holding in relation to a domain name registration can, in certain circumstances, constitute a domain name use in bad faith. It is said in the decision that “in considering whether a passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the Panel must give close attention to all the circumstances of the Respondent’s behavior”.

In this particular Complaint, the Respondent does not have a website under the disputed domain name. Instead, the following particular circumstances of this case should be taken into consideration:

1) the Complainant has sent a cease-and-desist letter to the Respondent’s email address on October 30 2007. The Respondent has not answered or reacted in any way to the letter;

2) the Respondent has actively provided false identity and contact details. This act is among other things in breach of the registration agreement clause 3.2 with the registrar Schlund + Partner AG;

3) the Respondent has not corrected false identity and contact details after receiving the cease-and-desist letter;

4) the Complainant’s trademark NOKIA being so widely well known and having a strong reputation all around the world the Respondent could not have been unaware of this fact in registering the disputed domain name; and

5) the Respondent has given to the registry the e-mail address id@saladams.com. According to the Tucows WHOIS database the registrant of the domain name <saladams.com> is Sal Adams Group. Since the e-mail address id@saladams.com is the only contact information the Complainant is aware of, the Complainant is concerned over the fact that Sal Adams Group has been the respondent in a very recent panel decision Mr. Anthony Mascolo v. SAL Adams Group, WIPO Case No. D2007-1020 given September 10 2007, in which the disputed domain name was transferred to the complainant. In this case Sal Adams Group claimed for the domain name in question a sum in excess of Ј500,000. This shows that the holder of saladams.com, which the e-mail address id@saladams.com is using, must be very well aware of the Policy, the Rules and the Supplemental Rules of the WIPO and that the Respondent may be engaged in a pattern of similar conduct.

In the light of the foregoing, the Complainant is of the opinion that the Respondent’s passive holding of the disputed domain name amounts to bad faith use of domain name under paragraph 4(a)(iii) of the policy.

B. Respondent

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

6. Discussion and Findings

According to paragraph 15(a) of the Rules the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:

(i) that the domain name registered by the Respondent 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 interest in respect of the domain name; and

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

Given the Respondent’s failure to file a Response, the Panel accepts as true all factual allegations of the Complainant. See Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009. The Respondent’s default does not, however, translate into an automatic ruling for the Complainant.

A. Identical or Confusingly Similar

The Mark NOKIA is registered in more than 170 countries throughout the world with the first filing of the mark NOKIA going back to 1960s and the Complainant is the holder of, among others, the Community trademark NOKIA.

Several previous panel decisions have stated that the mark NOKIA is a well-known mark. The panel also notes NOKIA’s market position and renown within the mobile telephone sector. In this case, however, it is not necessary to prove notoriety since NOKIA is the registered owner of a large number of registered prior rights which are confusingly similar with the disputed domain name.

The Complainant’s trademark NOKIA is incorporated, in its entirety, in the disputed domain name and is the dominant and distinctive part of the disputed domain name. The mere addition of the generic term “-corporate” is insufficient to avoid likely confusion. Therefore the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark NOKIA.

The “.com” suffix denoting second-level domain status in the Respondent’s domain name does not affect the fact that the disputed domain name is confusingly similar to Complainant’s marks pursuant to paragraph 4(a)(i) of the Policy.

Therefore the Panel is satisfied that the first element of the Policy has been met.

B. Rights or Legitimate Interests

The Complainant has contended the following. The Respondent does not have any right or legitimate interests in the domain name. The Respondent has not registered it as a trademark, service mark or company name anywhere in the world. The Respondent has not used the mark for offering of goods or services. The Respondent is not commonly known by the name “NOKIA” or “NOKIA-CORPORATE”. The Complainant has not licensed or otherwise permitted the Respondent to use the trademark NOKIA. There is no relationship between the Complainant and the Respondent.

There is no evidence before this Panel to contradict or challenge the above contentions of the Complainant.

Based on the prima facie case established by the Complainant that the Respondent has no rights or legitimate interest in the domain names, to which the Respondent has not responded, the Panel finds that the prerequisites in the Policy, paragraph 4(a)(ii) are fulfilled.

The Panel is thereby satisfied that the second element of the Policy has been met.

C. Registered and Used in Bad Faith

The Complainant has contended the following. The Respondent has provided to the registrar of the disputed omain name the name as “Kai Oeistaemoe” from “Nokia Corporate”, along with certain contact detlails. Mr. Kai Цistдmц is the Executive Vice President of the Complainant. The contact details provided by the Respondent are almost identical to those of the Complainant.

In light of these facts it seems clear that the Respondent has provided false identity and contact details. It is also clear that the Respondent, at the time of registration, was apparently aware of the Complainant.

The Panel, in view of the above facts, finds that the disputed domain name has been registered in bad faith.

The Complainant has contended the following.

1) the Complainant sent a cease-and-desist letter to the Respondent’s email address on October 30, 2007. The Respondent has not answered or reacted in any way to the letter;

2) the Respondent has actively provided false identity and contact details;

3) the Respondent has not corrected false identity and contact details after receiving the cease-and-desist letter;

The passive holding of a domain name can, under certain circumstances, amount to use in bad faith. In this regard, the Panel notes previous panel findings that the NOKIA mark is well known. The Panel further finds it difficult to conceive of any use of the disputed domain name by the Respondent that would not amount to any likely infringement of the mark. Based on the prima facie case established by the Complainant that the Respondent has registered and used the disputed domain name in bad faith, to which the Respondent has not responded, the Panel finds that the prerequisites in the Policy, paragraph 4(a)(iii) are fulfilled.

The Panel is thereby satisfied that the third element of the Policy has been met.

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 <nokia-corporate.com> be transferred to the Complainant.


Jonas Gulliksson
Sole Panelist

Dated: January 21, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1738.html

 

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