Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Georgia Power Company, the Southern Company v. Wang Congming

Case No. D2008-0234

1. The Parties

The Complainants are Georgia Power Company and the Southern Company, United States of America, represented by Troutman Sanders, LLP, United States of America.

The Respondent is Wang Congming, China.

2. The Domain Name and Registrar

The disputed domain name <gerogiapower.com> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2008. On February 15, 2008, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On February 15, 2008, Moniker Online Services, LLC 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 February 25, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 16, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 17, 2008.

The Center appointed David Taylor as the sole panelist in this matter on April 2, 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 Complainants in this case are Georgia Power Company and the Southern Company. The Georgia Power Company is a wholly-owned subsidiary of the Southern Company.

The Complainants are in the business of producing electricity and providing energy-related services in the United States of America.

The Complainants own the following United States federal service mark and trade mark registrations:

- Service mark GEORGIA POWER (Registration number 2,169,059), registered on June 30, 1998 by the Georgia Power Company and first used in commerce in 1926;

- Service mark GEORGIA POWER (Registration number 2,778,426), registered on October 28, 2003 by the Georgia Power Company;

- Service mark GEORGIA POWER A SOUTHERN COMPANY (Stylized) (Registration number 2,169,185), registered on June 30, 1998 by the Southern Company;

- Trade mark GEORGIA POWER A SOUTHERN COMPANY (Stylized) (Registration number 2,347,150), registered on May 2, 2000 by the Southern Company.

The Complainants maintain a website at “www.georgiapower.com”.

The domain name <gerogiapower.com> was registered on August 23, 2007 and is currently registered to the Respondent.

5. Parties’ Contentions

A. Complainants

(i) The Complainants contend that the disputed domain name is identical or confusingly similar to the GEORGIA POWER marks in which the Complainants have rights.

The Complainants state that the disputed domain name is virtually identical in substance and appearance to the Complainants’ marks as the only difference is that “georgia” is spelled incorrectly (“gerogia”) in the disputed domain name. The Complainants also contend that the domain name is virtually identical in pronunciation and sound to the GEORGIA POWER marks and therefore confusingly similar to this mark. The Complainants state that the domain name has suggestions, connotations and commercial impressions identical to the GEORGIA POWER marks and that it is therefore confusingly similar to said mark.

(ii) The Complainants also contend that the Respondent has no rights or legitimate interests with respect to the disputed domain name.

According to the Complainants’ assertions, the Respondent is not licensed or otherwise authorised to use the GEORGIA POWER marks. Furthermore, the Complainants submit that the Respondent cannot establish that it falls into any of the categories set out under paragraph 4(c) of the Policy.

(iii) The Complainants also assert that the disputed domain name has been registered and is being used in bad faith under the criteria set forth in paragraph 4(b) of the Policy.

The Complainants assert that the Respondent was fully aware of the Complainants’ rights in the GEORGIA POWER marks when it registered the domain name as it represents an obvious misspelling of said marks.

According to the Complainants the Respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainants’ marks, as referred to at paragraph 4(b)(iv) of the Policy.

Furthermore, the Complainants contend that the disputed domain name has been diverting customers from Complainants’ own website “www.georgiapower.com” thus disrupting the Complainants’ business. The use of the domain name by the Respondent has caused serious and irreparably injury and damage to the Complainants, their goodwill and their marks.

The Complainants also assert that the use of the domain name violates their rights in the GEORGIA POWER marks under certain sections of the United States Lanham Act relating to cyberpiracy, trade mark infringement, trade mark dilution and unfair competition.

The Complainants therefore seek the transfer of <gerogiapower.com> from the Respondent to the Georgia Power Company in accordance with paragraph 4(i) of the Policy and any further relief as the Panel deems appropriate.

B. Respondent

The Respondent did not reply to the Complainants’ contentions.

6. Discussion and Findings

Paragraph 15(a) of the Rules states that a panel shall 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 case of default by a party, paragraph 14 of the Rules states that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under, the Rules, the Panel shall draw such inferences therefrom as it deems appropriate. In this case, Respondent has not submitted any Response and consequently, despite the opportunity given, has not contested any of the contentions by the Complainants. The Panel will therefore have to proceed on the basis of the factual statements contained in the Complaint and the documents available to support the contentions.

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

(i) the domain name registered by Respondent is identical or confusingly similar to a trade mark or service mark in which Complainants have rights; and

(ii) the Respondent has no rights or legitimate interests in the domain name; and

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

Taking each of these issues in turn, the Panel decides as follows:

A. Identical or Confusingly Similar

Based on the evidence produced by the Complainants, the Panel finds that the Complainants have rights in the GEORGIA POWER marks.

Numerous UDRP decisions have established that the addition of a top-level domain such as “.com” suffix can be ignored when assessing the issue of similarity.

The Panel considers that though certainly not identical to the Complainants’ marks, the domain name <gerogiapower.com> is visually very close indeed to the Complainants GEORGIA POWER marks, the only difference being the inversion of the third and fourth letters of said marks.

The Panel therefore finds that the disputed domain name is confusingly similar to the Complainants’ marks.

B. Rights or Legitimate Interests

The second element the Complainants must establish is that the Respondent has no rights or legitimate interests in respect of the disputed domain name, in accordance with paragraph 4(a)(ii) of the Policy.

Paragraph 4(c) of the Policy sets out various ways in which a Respondent may demonstrate rights or legitimate interests in the domain name, as follows:

“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are 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 trademark or service mark at issue.”

The Panel has considered the evidence put forward by the Complainants and considers that the Complainants have presented a prima facie showing of the Respondent’s lack of rights or legitimate interest in the disputed domain name. As a result of its default, the Respondent has failed to rebut that showing.

It is inconceivable that the Respondent created the website under the disputed domain name for any reason other than generating advertising revenue based on the derived trade mark value of the domain name. The Panel considers that such use does not qualify as a bona fide offering of goods or services or a legitimate non-commercial or fair use of the domain name within the meaning of paragraph 4(c)(i) and (iii) of the Policy.

The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The third element that the Complainants must prove is that the disputed domain name has been registered and is being used in bad faith in the sense of paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith, as follows:

“For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith

(i) circumstances indicating that you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have 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 you have engaged in a pattern of such conduct; or

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

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”

The Panel cannot conceive that the misspelling of “georgiapower” was not intentional and finds that it represents a classical example of typosquatting. It has been long established that typosquatting as such is an indication of bad faith, see for example National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011. The misspelling of the GEORGIA POWER mark in the domain name is with intent to intercept and siphon off traffic from its intended destination and direct them to the Respondent’s website.

The website under the disputed domain name contains links to “Georgia Power”, “Georgia Power New Service”, “Online Payments” and “Pay Georgia Power Bill On Line”. The Complainants assert that the use of the domain name has caused and will continue to cause serious and irreparable injury and damage to themselves, their business, their goodwill and their marks. The Complainants have not submitted any evidence that actual damage occurred as a result of aforementioned links, most of which refer to other landing pages. Although the Complainants’ statement goes unsupported by any evidence, securing safe online payments is key to any business these days. The Panel notes that the Complainants have integrated an online payment feature on their own website and is therefore of the opinion that the domain name registration in the name of the Respondent is potentially capable of causing actual damage to the Complainants’ business as well as defrauding unsuspecting customers.

Despite the misspelling of the Complainants’ marks in the domain name, the links on the website under the disputed domain name are clearly based on the derived brand value of the domain name. In line with the trend in UDRP decisions, the Panel finds that such practices constitute abusive cyber squatting (see e.g. Champagne Lanson v. Development Services/MailPlanet.com, Inc., WIPO Case No. D2006-0006; The Knot, Inc. v. In Knot We Trust LTD., WIPO Case No. D2006-0340, and most recently Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415).

In light of the above the Panel finds that, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainants’ mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website in the sense of paragraph 4(b)(iv) of the Policy.

The Panel therefore finds that the Complainants have succeeded in proving that the disputed domain name has been registered and is being used in bad faith.

Finally the Panel shall briefly address the Complainants’ submission that the Respondent’s use of the domain name violates the Complainants’ rights under the United States Lanham Act. According to paragraph 15(a) of the Rules the Panel shall base its decision on the law that it deems applicable. In cases where both parties reside in the same country it may under certain circumstances be sensible to consider matters of national law. In the current instance however the Complainants and the registrar are located in and the mutual jurisdiction chosen relates to the United States of America, whereas the Respondent resides in the People’s Republic of China. Accordingly the Panel is not convinced that the United States law provisions relied on by the Complainants would apply to the current matter. Given that the Complainants are granted the relief sought the Panel does not need to consider the issue further.

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 <gerogiapower.com> be transferred to the Georgia Power Company.

David Taylor
Sole Panelist

Dated: April 16, 2008