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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

NetStar Australia Pty Limited v. James Nyunt

Case No. DAU2007-0011

1. The Parties

The Complainant is NetStar Australia Pty Limited, North Ryde, Australia, represented by Middletons Lawyers, Australia.

The Respondent is James Nyunt, Hornsby, Australia.

 

2. The Domain Name and Registrar

The disputed domain name <netstarit.com.au> (the “Domain Name”) is registered with Distribute.IT t/as ClicknGo (the “Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 19, 2007. On November 19, 2007, the Center transmitted by email to Distribute.IT t/as ClicknGo a request for registrar verification in connection with the domain name at issue. On November 21, 2007, Distribute.IT t/as ClicknGo 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 .au Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .au Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

On November 25, 2007, the Center received an email from the Respondent stating that he had been made aware of the Complaint and providing new contact details, but not providing any other comment regarding the Complaint.

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, both at the address for service provided by the Registrar and at the new contact details provided by the Respondent, and the proceedings commenced on December 7, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was December 27, 2007. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on December 28, 2007.

The Center appointed William P. Knight as the sole panelist in this matter on January 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

Registration of the Domain Name by the Respondent was based upon the New South Wales registered business name “NETSTAR IT SOLUTIONS”, registered by the Respondent on November 7, 2006.

The Complainant is a provider of services relating to computers and computer networks which has been doing business in Australia and in other countries for some years. It is the owner of the trademark NETSTAR in a lozenge-shaped device, registered in Australia in classes 37 and 42, No. 818212, with a priority date of December 23, 1999 (the “Trade Mark”).

The Complainant uses the domain names containing the word “Netstar” <netstarnetworks.com> (registered on March 3, 1999) and <netstarnetworks.com.au>.

The Domain Name is being used by the Respondent to offer services identical to those in respect of which the Trade Mark is registered.

The Complainant gave evidence of letters to the Respondent advising him of the Complainant’s legal rights dated August 22, 2007 and September 12, 2007, to neither of which did the Respondent reply.

 

5. Parties’ Contentions

In accordance with paragraph 4(a) of the Policy, the Complainant asserts, inter alia, as follows:

(i) that the Domain Name is confusingly similar to the Complainant’s name and the Trade Mark;

(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and

(iii) that the Domain Name has been registered or is being used in bad faith.

The Complainant’s assertions in respect of (i) and (ii) are supported, in short, by the obvious similarity between the dominant element in the Domain Name NETSTAR, with the mere addition of the generic word “IT”, which refers to information technology products and services, to the Trade Mark and the dominant element in the name of the Complainant.

In support of (iii), the Complainant asserts that registration or use in bad faith is evidenced by the fact of the Respondent’s use of the Domain Name must infringe the exclusive rights of the Complainant to use the Trade Mark in respect of the services in respect of which it is registered, granted by the Australian Trade Marks Act 1995, in the absence of some defense afforded by that Act. The only apparent purpose and use of the Domain Name is to divert Internet users to the competing services of the Respondent. The Complainant refers to the decision in The University of Windsor v. Modern Empire Internet Limited, WIPO Case No. D2006-1238.

B. Respondent

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

6. Discussion and Findings

The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy.

However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. Not only has he been provided with the Complaint, but the Complainant drew the attention of the Respondent to the Trade Mark and the Complainant’s other rights before the commencement of these proceedings. The Respondent cannot be in a better position by failing to respond than if the Respondent had chosen to take advantage of the opportunities afforded to him, for example, under paragraph 4(c) of the Policy and paragraph 5 of the Rules.

Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion, which is capable of being drawn from the evidence provided by the Complainant and is not contradicted by the Respondent, satisfies the three elements of the Policy.

A. Identical or Confusingly Similar

It is clear that the Complainant is the owner of the Trade Mark, through registration of the Trade Mark and use of it and its name “NetStar” in Australia and other countries.

The mere addition of a generic word after the dominant word component of the Trade Mark, NETSTAR, and the Complainant’s name, and in particular a word identifying services associated with the Complainant and in respect of which the Trade Mark is registered, will not be sufficient to distinguish the Domain Name if the dominant impression given by the Domain Name remains the Complainant’s name and the Trade Mark.

The Panel finds that the Domain Name is confusingly similar to the Trade Mark and the Complainant’s name. Accordingly, paragraph 4(a)(i) of the Policy is satisfied in this case.

B. Rights or Legitimate Interests

The Panel is satisfied that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interest in the dispute domain name. The Respondent was entitled, and had every opportunity, to demonstrate some right or legitimate interest with respect to the Domain Name. The Respondent has given no such explanation.

The Panel, therefore, agrees with the Complainant’s submission that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.

C. Registered or Subsequently Used in Bad Faith

Paragraph 4(a)(iii) of the Policy directs that the Complainant must establish that the Domain Name has been registered or subsequently used in bad faith.

There has been no explanation given by the Respondent for the coincidence in his registered business name and the Domain Name and the well-established Trade Mark and name of the Complainant dating back to 1999. Furthermore, it would appear plain that the Respondent is using the Domain Name to divert customers or potential customers of the Complainant’s services to the Respondent.

The Complainant has brought its prior legal rights to the attention of the Respondent. Notwithstanding, the Domain Name continues to be in use. Accordingly, the Panel concludes that the Respondent registered or is now using the Domain Name in bad faith, in the sense required by the Policy.

The Panel therefore concludes that the Respondent has registered and is using the Domain Name in bad faith.

 

7. Decision

In the light of the findings in paragraph 6 above, the Panel concludes that:

- the subject domain name <netstarit.com.au> is confusingly similar to the Trade Mark and name of the Complainant; and

- the Respondent has no rights or legitimate interests in the Domain Name; and

- the Domain Name was registered or is being used in bad faith.

Accordingly, the Panel orders in accordance with paragraphs 4(i) of the Policy and 15 of the Rules that the disputed domain name <netstarit.com.au> be transferred to the Complainant.

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William P. Knight
Sole Panelist

Dated: January 29, 2008