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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Weyerhaeuser Company v. Eurobox Ltd., Parallam, DP Manager / “Weyerhaeuser Company”

Case No. D2007-1792

1. The Parties

The Complainant is Weyerhaeuser Company, Federal Way, Washington, United States of America, represented internally, United States of America.

The Respondent is Eurobox Ltd., Parallam, DP Manager / “Weyerhaeuser Company”, St. Petersburg, Russian Federation.

2. The Domain Name and Registrar

The disputed domain name <parallam.com> is registered with DomReg Ltd. d/b/a LIBRIS.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2007. On December 6, 2007, the Center transmitted by email to DomReg Ltd. d/b/a LIBRIS.com a request for registrar verification in connection with the domain name at issue. Following numerous reminders on December 20, 2007 DomReg Ltd. d/b/a LIBRIS.com transmitted by email to the Center its verification response confirming that the disputed domain name was registered with Domreg Ltd. The Registrar further denied the receipt of a copy of the Complaint. The Registrar confirmed that the disputed domain name was submitted for registration in the Russian Federation and that the language of the Registration Agreement was Russian. However, the Registrar informed that the disputed domain name was not registered by the Respondent Eurobox Ltd. and the Complainant, Weyerhaeuser Company was indicated as current domain name Registrant. On December 21, 2007, the Complainant confirmed that it had not obtained actual control over the disputed domain name.

On December 24, 2007, the Center informed the Registrar that the Complainant had not obtained control over the disputed domain name and requested the Registrar to confirm the compliance with ICANN’s Expired Domain Deletion Policy (Para 3.7.5.7). Three further reminders were forwarded by the Center to the Registrar. As no further communications were received from the Registrar, the Center proceeded in the matter. On January 25, 2008 the Center issued a notice of Language of Proceeding. On February 8 and February 28, 2008, the Complainant forwarded a request that English be the language of proceeding.

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 March 13, 2008. The Center’s communications were issued to the Respondent in English and in Russian.

In accordance with the Rules, paragraph 5(a), the due date for Response was April 2, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 3, 2008.

The Center appointed Irina V. Savelieva as the sole panelist in this matter on April 14, 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 a United States corporation with its principal place of business in the State of Washington. In 1999 the Complainant acquired the company Trust Joinst MacMillan and the rights in its trademark including PARALLAM. The Complainant’s right to this trademark commenced as early as 1985.

The Complainant produces various lumber, timber and wood-based products including those known under the name ‘Parallam’ (see Complainant website). The Complainant is one of the world’s largest international forest product companies with annual sales of UD$21 billion.

The disputed domain name was registered on December 11, 2004.

5. Outstanding procedural matters

Conduct of the Registrar

There are a number of aspects of the Registrar’s conduct in this matter which the Panel finds reflecting negatively on the Registrar. First, there is the fact that it took sixteen days for the Registrar to respond to the Center’s verification email in this case. Second, the Panel doubts that information submitted by the Registrar about the Complainant being the registrant of the disputed domain name was correct, as the Complainant subsequently confirmed it had not obtained control of the disputed domain name. Thirdly, the Registrar failed to respond to emails forwarded by the Center on December 24, 2007, January 4, 2008, January 9, 2008 and January 15, 2008.

For the Policy to be able to operate successfully it requires registrars to ensure that their public WhoIs databases are reliable and accurate and that registrars fully and promptly cooperate with Providers in dealing with requests and communications associated with complaints (see Mrs. Eva Padberg v. Eurobox Ltd., WIPO Case No. D2007-1886).

The Registrar’s actions in this case are ones that the ICANN may wish to investigate further. The Panel believes that it is, therefore, important that such matters are brought to the attention of ICANN. ICANN can take such steps and impose such sanctions as it considers appropriate not only to ensure that the UDRP is observed in a particular case but also to safeguard the operation of the UDRP as a whole.

Language of Proceedings

The language of the registration agreement for the disputed domain name is Russian. Pursuant to paragraph 11 of the Rules, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. From the evidence presented in the case file, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the proceedings should be in English.

The Complainant has submitted a request that English be the language of the present proceedings.

Considering the circumstances of the present case and the Complainant’s request, the Panel is of the opinion that the language for the present proceedings shall be in English and the decision will be rendered in English. In particular, the Panel notes that the material facts of this proceeding are generated in the English language. On record, the Respondent appears to be a Russian person and is thus presumably not a native English speaker, but the Panel finds that the record suggests the likely possibility that the Respondent is conversant and proficient in the English language. In particular, the Panel notes that the Respondent’s website disclosed content in English. The Panel also notes that the Center has notified the Respondent of the proceedings in both Russian and English. The Respondent had a choice to respond to the Complaint in either Russian or English as the Panel who has been appointed by the Center is conversant in both languages. However, the Respondent has chosen not to respond formally to the Complainant’s allegations. Considering these circumstances, the choice of English as the language of the present proceedings is fair to both parties and is not prejudicial to either one of the parties in their abilities to articulate the arguments for this case.

6. Parties’ Contentions

A. Complainant

The Complainant’s grounds for the Complaint are the following:

- The Complainant owns exclusive rights to the trademark PARALLAM registered internationally (eight international trademark registration).

- The Complainant contends that the disputed domain name <parallam.com> is confusingly similar to its trademark.

- The Complainant never authorized the Respondent to use the disputed domain name.

- There is no evidence of the Respondent’s use or intention to use disputed domain names in connection with a bona fide offering of goods and services.

- Word ‘Parallam’ is not a generic or dictionary term and is not descriptive of goods or services.

- The disputed domain name is used to attract the Internet users to monetized portal website providing advertising links to other website.

- The Respondent is creating a likelihood of confusion by using Complainant’s trademark to drive traffic to his site to generate advertising revenue, which is typically paid on a per-click basis.

- The Complainant contacted the Respondent with an offer to purchase the disputed domain name and no response was received.

- The Complainants contends that the Respondent does not use the disputed domain name in good faith.

Based on the above the Complainant requests transfer of the disputed domain name.

B. Respondent

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

7. Discussion and Findings

The Respondent was given notice of this proceeding in accordance with the Rules. The Center discharged its responsibility under paragraph 2(a) of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint. The Center notified the Russian language text of the Notice to ensure that the Respondent was aware of the administrative proceedings against him.

However, as noted, the Respondent failed to file any reply to the Complaint and has not sought to answer to the Complainant’s assertions, evidence or contentions. The Panel finds that the Respondent has been given a fair opportunity to present its case, and the Panel will proceed to a decision based on the Complaint.

The Respondent’s default does not automatically result in a decision in favor of the Complainant. The Complainant must still prove the elements required by the Policy. In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must prove that each of the three following elements are satisfied:

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

(ii) 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.

Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, the Panel may draw such inferences, as it considers appropriate from the Respondent’s failure to reply to the Complainant’s assertions and evidence or to otherwise contest the Complaint. In the circumstances, the Panel’s decision is based upon the Complainant’s assertions and evidence and inferences drawn from the Respondent’s failure to reply.

A. Identical or Confusingly Similar

The Complainant has registered the trademark PARALLAM in many countries of the world, including:

- in the United States of America: registered November 19, 1985 (for international class 19),

- in the United Kingdom: registered on July 27, 1990,

- in Germany: registered on April 1, 1986,

- in European Union (Community Trademark) on September 3, 1999 and other countries (Annex 4 to the Complaint).

The Panel finds that the Complainant has proved its rights to the trademark PARALLAM. The Panel finds that the disputed domain name is identical to the Complainant’s registered trademark.

The Panel agrees with the Complainant’s arguments that the disputed domain name could be directly associated in the mind of the consumers with the Complainant’s trademarks.

The Panel refers to a number of past UDRP decisions, which confirm that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical to a trademark. Further, the Panel notes that the specific top level domain does not affect the determination as to if a domain name is identical or confusingly similar to a trademark (and cites in this respect Magnum Piering, Inc v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; and, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429).

The word “parallam” in the disputed domain name neither bears any specific meaning nor represents a commonly known or generic name.

The Panel accepts that the “.com” suffix can be ignored and that the disputed domain name is essentially identical to the Complainant’s registered trademark.

The Panel finds that Complainant has satisfied its burden of proof under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name.

According to paragraph 4(c) of the Policy the following circumstances, if proved, demonstrate a respondent’s rights or legitimate interests in a domain name:

(i) respondent used or demonstrably prepared to use the domain name or corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute; or

(ii) respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or

(iii) respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s marks.

The Respondent may elect to show rights and legitimate interests, non-exhaustively, by producing proof under paragraphs 4(c)(i-iii) of the Policy. By not responding to the Complainant’s contentions the Respondent in this proceeding has not claimed any rights or legitimate interests.

There is no evidence that before any notice of this dispute, the Respondent was using the disputed domain name for a legitimate offer of goods and services. The Respondent does not use the disputed domain name in connection with a bona fide offering of goods and services, according to the standards set out in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.

The disputed domain name was previously pointed to a website disclosing pay-per-click advertisements. Subsequent investigation of the Panel shows that the website with the disputed domain name is currently inactive. The Panel believes that this fact presents additional proof that the Respondent was not and is not involved in bona fide offering of goods and services.

Considering the circumstances, the Panel is of the opinion, that there is no plausible circumstance which would justify the use of the domain name <parallam.com> by the Respondent.

Secondly, in relation to paragraph 4(c)(ii) of the Policy, there is no evidence that the Respondent has been commonly known by the disputed domain name. Moreover, the Panel considers that the Respondent indeed disguised his real identity by using reference to the Complainant’s company name ‘Weyerhaeuser Company’ in the Registrar’s Whois database.

The Panel refers to the UDRP decision Mrs. Eva Padberg v. Eurobox Ltd., WIPO Case No. D2007-1886 against the same Respondent. In that case the panel came to the conclusion that the Respondent “from the start sought to disguise his identity by the use of obviously false contact details” including use of the name ‘DP Manager’.

The disputed domain name was registered on December 11, 2004. The first trademark registration of the Complainant’s trademark PARALLAM dates back to 1985.

The Panel believes that the Respondent knew about the Complainant’s name and registered trademark PARALLAM at the time the disputed domain name was registered.

In view of these facts, it is the Panel’s view that the Respondent most likely registered the disputed domain name with the awareness of the Complainant’s products and its reputation.

Furthermore, the Panel draws an adverse inference from the Respondent’s failure to respond to the Complaint.

The Panel finds the Complainant has carried out its burden of proof to show that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances are deemed to be evidence that the Respondent has registered and used a domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or has 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 the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent 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 Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or location or of a product or service on its website or location.

The Complainant contends that the Respondent has violated the bad faith provision of the Policy because the disputed domain name, according to the evidence submitted by the Complainant, was registered and has been used primarily to host a monetized website that links to a search engine which allows the Respondent to make money every time a web surfer clicks a sponsored link on the hosted website (Annex 7 to the Complaint).

An independent subsequent search by the Panel indicated that the disputed domain name <parallam.com> is currently inactive.

The Panel finds that the Respondent has intentionally attempted to attract Internet users to its website in line with paragraph 4(b)(iv) of the Policy. The Panel believes that the Respondent initially used the disputed domain name for commercial gain although without selling products or services itself. How such per-per-click services may operate is discussed by the panel in the UDRP decision Owens Corning v. NA, WIPO Case No. D2007-1143.

The Panel further notes as indicated above that the Complainant’s allegations that the Respondent operates under identity shield offered by Eurobox Ltd (DP Manager eurobox@co.spd.ru, Eurobox Ltd., St. Petersburg, Russian Federation 197022) (Annex 1 to the Complaint) are justified.

The Panel finds that the Complainant presented evidence that the Respondent was acting in bad faith in accordance with paragraph 4(b)(iv) of the Policy.

The Panel holds that the Respondent has registered the disputed domain name in bad faith. The Respondent does not conduct any legitimate business activity using the disputed domain name. The Respondent most likely knew of the Complainant’s products and trademark PARALLAM. These findings, together with the finding that the Respondent has no rights or interests in the disputed domain name, lead the Panel to conclude that the disputed domain name has been registered and used by the Respondent in bad faith.

The fact that the Respondent failed to respond to the Complaint, in the Panel’s view, further suggests bad faith.

Accordingly, the Panel finds the Complainant has shown that the Respondent has registered and used the disputed domain name in bad faith.

8. 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 <parallam.com> be transferred to the Complainant.


Irina V. Savelieva
Sole Panelist

Dated: April 28, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1792.html

 

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