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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

ERGO Versicherungsgruppe AG v. Idealist

Case No. D2008-0377

 

1. The Parties

The Complainant is ERGO Versicherungsgruppe AG, Duesseldorf, Germany, represented by Dr. Christoph Geskes, Germany.

The Respondent is Idealist, Istanbul, Turkey.

 

2. The Domain Name and Registrar

The disputed domain name <ergofinance.com> is registered with GoDaddy.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 10, 2008. On March 11, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On March 11, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response providing the contact details of the registrant. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 20, 2008. 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 25, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2008. The Response was filed with the Center on April 11, 2008.

The Center appointed Richard Hill as the sole panelist in this matter on April 21, 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 well-known insurance company owning various national and European trademarks for the word “ergo”.

The Respondent registered the disputed domain name in May 2007.

The Respondent has changed, after the submission of the Complaint, certain WhoIs information and the content of the website at the disputed domain name.

Prior to those changes, the website at the disputed domain name contained sponsored links to various websites offering financial services.

 

5. Parties’ Contentions

A. Complainant

According to the Complainant, with a premium income of almost 17 billion euros, it is one of the major insurance groups in Europe. It is incorporated under the laws of the Federal Republic of Germany. In Germany, the Complainant and its national subsidiaries have 15 million customers. Outside Germany, the Complainant and its international subsidiaries operate successfully in 24 countries.

The Complainant states owns a trademark portfolio which contains numerous national and international trademarks comprising the term “ergo”, and in particular a European Community trademark for ERGO. That mark was registered in 1999. The disputed domain name was registered by the Respondent in 2007.

The Complainant alleges that the disputed domain name is confusingly similar to its mark because the disputed domain name consists of a word identical to the Complainant’s trademark, accompanied by the suffix “finance”. The term “finance” is solely descriptive and does not render the domain name different or distinctive from the trademark ERGO. Accordingly, the word “finance” must not be taken into consideration when judging the similarity between the domain name and the trademark.

The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name because it is not commonly known under that name. Further, the Respondent uses the disputed domain name for a website that purports to be and gives the impression of emanating from or, at least, in some way, being associated with the widely known, substantial and successful business being carried on by the Complainant.

According to the Complainant, it is the Respondent’s intention to profit from this by providing click-through-links which lead to a subordinated website containing sponsored links to third party websites where finance-related products and services are offered which do not emanate from the Complainant or any of its affiliates, but from other companies. Such conduct on the part of the Respondent is no bona fide offering of goods or services.

Further, says the Complainant, by choosing the WhoIs entry “Domain Purchase Enquiries Welcome”, the Respondent discloses his intention with regard to the registration of the disputed domain name. The Respondent aims to ‘monetize’ the disputed domain name by parking and reselling it. Such conduct is no bona fide offering of goods and services and definitely no legitimate non-commercial or fair use without intent for commercial gain.

The Complainant alleges that the disputed domain name was registered and is being used in bad faith by the Respondent because the Respondent registered the disputed domain name long after the registration of the Complainant’s trademark. Moreover, the services offered by the Complainant and its subsidiaries are identical or at least highly similar to those advertised on the Respondent’s website. Finally, the pay-per-click-links of the Respondent’s website are (or were for a time) in German, i.e. the language spoken in the Complainant’s home country where the Complainant is best known. Due to the combination of these circumstances, it is contended that the Respondent knew of the Complainant’s prior trade mark and that the domain name was registered in bad faith.

Further, says the Complainant, by using the disputed domain name, the Respondent is intentionally attempting to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of his website. Since the domain name incorporates the Complainant’s trademark and since the services offered by the Complainant and its subsidiaries are identical or at least highly similar to those advertised on the Respondent’s website, Internet users are tricked into wrongly believing that the website which they have reached is run by the Complainant and not by the Respondent. The latter profits from creating the likelihood of confusion, because he receives pay-per-click fees whenever misled visitors click on the sponsored links provided on his website.

The Complainant alleges that, subsequent to the filing of the Complaint, various changes were made with respect to the registration of the disputed domain name and the contents of the website pointed to by the disputed domain name. In particular, the phrase “This Domain May Be For Sale!” was taken off the homepage and the WhoIs was completely changed as well. Instead of “Domain purchase inquiries welcome” the Registrant was changed to “Idealist”. Such changes are indicative of bad faith registration and use. Indeed, the WhoIs originally showed the registrant as Domain Purchase Enquiries Welcome.

B. Respondent

According to the Respondent, the word “ergo” is one of the most popular generic words all over the world. According to dictionaries and encyclopedias “ergo” is a Latin word and it’s meaning is “therefore”; usually used to show a logical conclusion. Further, “ergo” can be used as an abbreviation, for example for the European Roma Grassroots Organisation, which operates a website at “www.ergonetwork.org”.

The Respondent provides evidence to the effect that there are thousands of websites starting with the word “ergo”. The owners of these domain names and websites are different persons or companies; some of the websites are popular all over the world.

The Respondent alleges that “ErgoFinance” is one the the most popular generic two-word domain names and it is being used all over the world as well. He provides as examples:

- “www.ergogroup.com/industries/financial.html”

- “www.ergo.co.uk/services/ergofinance/”

- “www.ergoequip.com/finance/logo.html”

According to the Respondent, it is very hard to say that confusing similarity arises in cases where the words used in a domain name are generic. There are many such generic terms that are used in domain names and nobody can acquire exclusive rights in them.

The Respondent alleges that, where a domain name is generic, the first person to register it in good faith is entitled to the domain name and this is considered a legitimate interest. Thus he has rights to and legitimate interests in a domain name that consists of a generic or common term.

According to the Respondent, the disputed domain name is parked with GoDaddy with a default hosting page, so displays of sposored links are provided automatically by GoDaddy. The Respondent is not earning even one cent with that page.

The Respondent states that he bought the disputed domain name because he has a project to build a flexible, ergonomics financial planning website.

The Respondent provides evidence to the effect that the disputed domain name had several owners since the year 2000. The company Augusta Finance Plc, used the disputed domain name from 2003 to 2005.

The Respondent provides evidence to the effect that various domain names containing the word “ergo” are used by entities other than the Complainant. In particular, <ergoinsurance.com> points to a page containing German-language links to various websites unrelated to the Complainant but offering insurance or financial services. Similarly, the domain names <ergobank.com> and <ergotrade.com> are offered for sale.

The Respondent wonders why, given the above, the Complainant is claiming only the disptued domain name <ergofinance.com>. Is it possible that the Complainant has the right to claim any domain starting with the generic word “ergo”?

Finally, the Respondent disputes the allegation that he changed the WhoIs entry. The WhoIs entry, according to him, always correctly showed the owner of the disputed domain name as Idealist, Veysel Kaya, Idealistkent Santiyesi, Istanbul, Turkey.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has provided evidence showing that it owns various trademarks for the word “ergo”. And that it is a well-known company involved with financial services and markets. It is clear that the disputed domain name, consisting of the Complainant’s trademark plus the generic word “finance” is confusingly similar to the Complainant’s trademark. See for example Nokia Corporation v. Nokia-girls.com a/k/a IBCC a/k/a Nokiagirls.com, WIPO Case No. D2000-0912 (October 26, 2000).

The Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s trade mark.

B. Rights or Legitimate Interests

The Respondent correctly argues that, where a domain name is generic, the first person to register it in good faith is entitled to the domain name; that is to say, provided the domain name was genuinely registered for its generic meaning and not with the Complainant’s mark in mind. See e.g. Gold Medal Travel Group plc v. Damir Kruzicevic, WIPO Case No. D2007-1902, mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.

It is not disputed that the string “ergo” is a Latin word which is commonly used in modern languages. Thus, the essential question that this Panel has to address is whether or not the Respondent registered the disputed domain name in good faith.

If the registration was in good faith, then the Respondent may (depending on its use of the site) have a legitimate interest in the disputed domain name. But, if the registration was not in good faith, then the Respondent does not have rights or legitimate interests in the disputed domain name.

For the reasons given below, the Panel finds that the Complainant has provided sufficient evidence to show that the Respondent registered and is using the disputed domain name in bad faith.

Thus the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Respondent does not dispute the Complainant’s allegation that it is a well-known company. The Complainant has provided evidence showing that the disputed domain name was used to point to a website containing sponsored links, which created a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of his website. Further, despite the Respondent’s denial, the Panel holds that the Respondent profited from the resulting click-through revenue. This constitutes bad faith registration and use under Paragraph 4(b)(iv) of the Policy. See Am. Univ. v. Cook, NAF Case No. 208629 (December 22, 2003) (“Registration and use of a domain name that incorporates another’s mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Perot Sys. Corp. v. Perot.net, NAF Case No. 95312 (August 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).

Indeed, the evidence contradicts the Respondent’s allegation that the disputed domain name was merely used to point to GoDaddy’s default page. The evidence provided by the Complainant shows that the disputed domain name was used to point to a custom-made website (not a default page) containing German-language text and graphic elements highlighting links to various financial services.

The Complainant has provided evidence to the effect that, after the filing of the Complaint, the Respondent changed the WhoIs information and the content of the website at the disputed domain name. The Respondent has denied changing the WhoIs information. This denial, which is contradicted by the evidence, is further indication of bad faith behaviour. Indeed, the WhoIs print-out provided by both the Complainant and the Respondent indicates that the WhoIs record was updated on 10 March 2007, the date on which the Complaint was sent to the Respondent by E-Mail.

Thus, the Respondent has apparently attempted to mislead the Panel in at least two ways: by claiming that the website at the disputed domain name was merely the GoDaddy default page, and by claiming that the WhoIs record was not changed recently. Attempts to mislead the Panel may, in and of themselves, be indications of bad faith registration and use, see Morgan Stanley v. Meow, NAF Case No. 671304 (May 15, 2006).

The Respondent makes much of the fact that there are many other websites containing the word “ergo” and wonders why the Complainant does not take action against the owners of those domain names. But that question is irrelevant for the present case. The Complainant is free to take action, or not, against any site that it considers to infringe the Policy, and whether or not it takes such action does not affect the present case.

Similarly, the Respondent makes much of the fact that, from 2003 to 2005, the disputed domain name was used by a company called Augusta Finance. Again, the fact that the Complainant did not take action at that time is not relevant for the present case. There are any number of reasons for which the Complainant may have chosen not to take action, including the possibility that the registrant at that time could prove rights or legitimate interests, which the present Respondent has failed to do.

In an attempt to show good faith registration and use, the Respondent alleges that that he bought the disputed domain name because he has a project to build a flexible, ergonomics financial planning website. But he provides no evidence whatsoever to support that allegation. The disputed domain name was registered in May 2007. The Complaint was filed in March 2008. Thus the Respondent had ample time to prepare at least designs for the planned website. The failure to present any such designs in the Response leads the Panel to conclude that the Respondent does not really have any concrete plans to build a website at the disputed domain name.

And, as noted before, the Respondent did have the time to develop a custom website offering sponsored links to various financial services and to use the disputed domain name to point to that site.

The Panel finds that the Respondent has registered and used the disputed domain name in bad faith.

 

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, <ergofinance.com> be transferred to the Complainant.


Richard Hill
Sole Panelist

Date: April 25, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0377.html

 

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