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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson and Sony Corporation v. Domain Buyer

Case No. D2007-1802

1. The Parties

The Complainants are Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson, Sony Corporation, of United States of America, represented by Gцhmann Rechtsanwalte Abogados Advokat Steuerberater Partnerschaft, of Germany.

The Respondent is Domain Buyer, of St. Johns, Antigua and Barbuda.

2. The Domain Name and Registrar

The disputed domain name <sonyerikson.com> (the “Domain Name”) is registered with eNom, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 5, 2007. On December 6, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 7, 2007, eNom 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 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 8, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2008.

The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on January 15, 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

Second Complainant is the sole and exclusively entitled holder of the trademark ERICSSON that has been registered with the Office for Harmonisation in the Internal Market on March 23rd, 1999 under the number 000107003 for inter-alia apparatus and instruments for data communication.

Second Complainant is the sole and exclusively entitled holder of the trademark ERICSSON that is registered with the Office for Harmonisation in the Internal Market on February 15, 2001 under the number 001459130.

Third Complainant is the sole and exclusively entitled holder of the trademark SONY that is registered with the office of Harmonisation in the Internal Market under the number 000000472 for inter-alia apparatus and instruments for data communication. The registration occurred on May 5, 1998.

First Complainant is licensee of Second Complainant and Third Complainant insofar as First Complainant is entitled to use the combination of the trademarks of the Second and Third Complainants as a company name and as the trademark SONY ERICSSON for its products.

In addition First Complainant has the right to enforce the trademarks SONY and ERICSSON together as trademark SONY ERICSSON.

Respondent registered the Domain Name <sonyerikson.com> on June 4, 2006.

Complainants have tried to contact the Respondent and have sent him letters in which he has been informed of the trademark infringement. Respondent has been asked to transfer the Domain Name. However, Respondent has never reacted to those letters.

5. Parties’ Contentions

A. Complainant

1. The Domain Name is identical or confusingly similar to a trademark in which the Complainants have rights.

The trademark ERICSSON is one of the most famous trademarks in the field of mobile communication and mobile telephones.

The trademark SONY is one of the most famous trademarks in the field of mobile communication, multimedia and entertainment.

First Complainant has, immediately after its set up by Second Complainant and Third Complainant in October 2001, become a major player in the field of mobile telephones. Therefore the name “Sony Ericsson” has within a short period of time become globally recognized in the filed of mobile telephones and is now well-known in the telecommunication industry and amongst the respective consumers. It has to be considered as a well-known trademark in that field. Furthermore, First Complainant is the entitled holder of the company name “Sony Ericsson”. First Complainant is the owner and operator of the website “www.sonyericsson.com”. On this website, First Complainant is providing the Internet users with information about its products – especially mobile phones – and other related topics.

Complainants have already successfully initiated comparable proceedings before the Center. Reference is made to the decisions of the respective Administrative Panels, Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson, Sony Corporation v. Party Night Inc, WIPO Case No. D2002-1128; Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson, Sony Corporation v. Dariusz Pietras, WIPO Case No. D2005-0553; Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson, Sony Corporation v. Mohamed Ali Aal Ali, WIPO Case No. DAE2006-0002 and Sony Ericsson Mobile Communications AB, Telefonaktiebolaget LM Ericsson, Sony Corporation v. Aylin Dzhelilova, WIPO Case No. D2006-1568.

The first part of the Domain Name <sonyerikson.com> is identical to the famous trademark of Third Complainant. The second part of the aforementioned Domain Name is confusingly similar to the famous trademark of Second Complainant. The complete Domain Name is confusingly similar to the trademark SONY ERICSSON which is used by First Complainant.

According to Complainants, the public may get the impression that the Disputed Domain Name is somehow connected to the Complainants’ trademarks.

2. The Respondent has no rights or legitimate interests in respect of the Domain Name.

The Respondent has never been authorized by the Complainants to use their trademarks in any way.

The Respondent cannot demonstrate under the Policy that he has made any use of, or demonstrable preparation to use, the Domain Name or name corresponding to the Domain Name in connection with a bona fide offering of goods or services.

The Respondent cannot establish rights in the Domain Name under paragraph 4 (c)(ii) of the Policy because the Respondent (as an individual, business, or other organization) has never been commonly known by the Domain Name and has not acquired trademark or service mark rights in the Domain Name. The Respondent has never been called by, affiliated with or commonly known by the Domain Names in dispute. The Respondent does not make any legitimate non-commercial of fair use of the Domain Name, instead he is holding the Domain Name with the only purpose to sell it. This means that the only reason why the Respondent is holding the Domain Name is to gain money with it to the detriment of First Complainant who is the right holder in the Domain Name. This approach can not be considered as a legitimate non-commercial of fair use of the Domain Name.

3. The Domain Name was registered and is being used in bad faith.

The use of the Domain Name has to be considered as bad faith because the deliberate use of somebody’s trademark cannot be regarded as fair use. The potential for damage lies in the fact that the Complainants’ reputation and goodwill is out of their control and rests with the Respondent.

B. Respondent

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

6. Discussion and Findings

The burden that Complainants must meet under paragraph 4(a) of the Policy is to prove:

(i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainants have rights; and

(ii) that 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.

A. Identical or Confusingly Similar

The Panel is satisfied that the Complainants have rights to the trademarks SONY, ERICSSON and SONY ERICSSON.

Sony Corporation and Telefonaktiebolaget LM Ericsson have rights into the trademarks SONY and ERICSSON, respectively and Sony Ericsson Mobile Communications AB has been authorized to use the combination of these trademarks as a company name and as a combined trademark (SONY ERICSSON) and to enforce it.

A comparison between the Domain Name and the trademarks of the Complainants shows that the Domain Name contains a variation of the trademark ERICSSON owned by Telefonaktiebolaget LM Ericsson (i.e., “erikson” instead of “ericsson”). The same can be said with regard to the second name in the trademark SONY ERICSSON owned by Sony Ericsson Mobile Communications AB.

Only one letter in the Domain Name (the letter “k” replacing two letters (the letters “cs”) in the trademark) distinguishes the Domain Name from the word “ericsson” in Complainant’s trademark.

Both the Domain Name and the word “ericsson” are pronounced in the same way.

Therefore, the Panel finds that the Domain Name and the trademarks are confusingly similar.

As a result, the Panel finds that the conditions of paragraph 4(a)(i) of the Policy are fulfilled.

B. Rights or Legitimate Interests

Under the Policy, rights or legitimate interests in the Domain Name may be demonstrated by showing that:

(i) before any notice of this dispute, Respondent used, or demonstrably prepared to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or

(ii) Respondent has been commonly known by the Domain Name, even if no trademark or service mark rights have been acquired; or

(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark at issue. paragraph 4(c) of the Policy.

Although a Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, it is generally assumed that paragraph 4(c) of the Policy shifts the burden to the Respondent to come forward with evidence of a right or legitimate interest in the Domain Name, once the Complainant has made a prima facie showing.

In this case, the Complainants have contended that the Respondent has never been authorised by the Complainants to use their trademarks in any way and that the Respondent has not made any use of, or demonstrable preparation to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services.

The Respondent has not filed any response in the course of the proceedings so the Respondent has not brought any evidence for supporting its potential rights or legitimate interests in the Domain Name.

Even in the absence of a Response, the Panel has reviewed the record and the website to which the Domain Name resolves and finds that there is no indication of any right or legitimate interest by Respondent in the Domain Name.

C. Registered and Used in Bad Faith

The trademarks SONY, ERICSSON and SONY ERICSSON undoubtedly are widely known trademarks.

Respondent most likely knew these trademarks at the time of the registration of the Domain Name.

Only one letter in the Domain Name (replacing two letters in the trademark) distinguishes the Domain Name from Complainant’s trademark.

The website to which the Domain Name resolves shows that Respondent has intentionally sought to attract Internet users to its website by creating a likelihood of confusion with Complainant’s trademarks and domain name for commercial gain.

The trademark SONY ERICSSON (spelled as the trademark is registered and not with a “k”, as is the case in the Domain Name) is mentioned on the website.

Respondent is clearly specifically targeting Complainant’s trademark and attempting to divert Internet users searching for Complainant’s product to Respondent’s website.

Respondent is presumably profiting from this conduct in the form of click-through revenues.

These facts all support a finding of bad faith registration and use under paragraph 4(b)(iv) 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 <sonyerikson.com> be transferred to Complainants.


Flip Jan Claude Petillion
Sole Panelist

Dated: January 29, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1802.html

 

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