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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Antler Limited v. Moniker Privacy Services / PabloPalermao

Case No. D2008-0619

 

1. The Parties

The Complainant is Antler Limited, of Alfred Street, Bury, Lancashire, United Kingdom of Great Britain and Northern Ireland, represented by Marks & Clerk Solicitors, United Kingdom of Great Britain and Northern Ireland.

The Complainant has named two Respondents: Moniker Privacy Services, Pompano Beach, Florida, United States of America and Pablo Palermao, of San Isidro, Peru.

 

2. The Domain Name and Registrar

The disputed domain name <antlerluggage.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 April 21, 2008. On April 22, 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 April 29, 2008, Moniker Online Services LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 30, 2008 providing the registrant and contact information disclosed by the registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 2, 2008. The Center verified that both the Complaint and amended 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 May 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 27, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2008.

The Center appointed Christian Pirker as the sole panelist in this matter on June 6, 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 the proprietor of numerous trade mark applications and registrations throughout the world for ANTLER (“the Trademark”). The Complainant and its predecessors in title have been using the Trademark in respect of luggage in the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) since the 1920s. Moreover the Complainant estimates that approximately 60% of these total sales are for ANTLER branded products.

The Complainant has since 2007 and continues to operate and sell luggage and travel accessories branded with the Trademark inter alia from the website located at “www.antler-luggage.com”.

The Complainant is the sole legal holder among others of:

- International Trademark No. 801250 ANTLER in Class 18, registered with priority of April 1, 1996, for articles of luggage, in particular travelling bags, attache cases, documents cases, valises.

- Community Trade Mark Registration No. 42879 ANTLER in Class 18, registered with priority of April 1, 1996, for articles of luggage, in particular travelling bags, attache cases, documents cases, valises.

- US Trade Mark Registration No. 0850042 ANTLER in Class 18, registered on June 4, 1968, notably for traveling bags.

The Complainant is the owner of the domain name <antler-luggage.com> which was registered February 26, 2007.

The Respondent is located in San Isidro, Peru.

The disputed domain name was registered October 25, 2004 with Moniker as registrar and is used by the Respondent as a web directory which contains links and advertisement for various websites among others related to luggage and travel accessories.

 

5. Parties’ Contentions

A. Complainant

The Complainant argues that the Trademark is well-known in the United Kingdom, through its offering various kinds of luggage particularly online. The Complainant refers to its high profile, especially in United Kingdom, and its considerable commercial presence on the Internet, which reinforces the contention that any use of the domain name <antlerluggage.com> by the Respondent, whether as a website, sets up a false assumption with other Internet users that the Respondent is, or is connected or affiliated with the Complainant and thereby causes confusion to such users. The domain name <antlerluggage.com> is identical or confusingly similar to the Trademark ANTLER in which the Complainant has rights. The Complainant further contends that there exists a strong possibility of confusion particularly since the Respondent’s website offers luggage too. The Complainant contends that the domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant further alleges that the Respondent has no prior rights and/or legitimate interests to justify the use of this domain name. The Complainant has never licensed or otherwise permitted the Respondent to use its Trademark. The absence of any permission and the connection between the choice of the domain name and the Respondent’s website prove that the Respondent has neither rights nor legitimate interest in respect of the domain name. Accordingly, the Respondent registered its domain name in order to take advantage of the Complainant’s notoriety. The Complainant contends that the Respondent did not use the domain name for any legitimate, noncommercial or equitable purpose. There should be no doubt that the disputed domain name was registered and is being used in bad faith. Finally, the Complainant noted that the Respondent has recently been involved in a dispute related to registering and using domain names in bad faith. Thus, the Complainant contends that the Respondent has registered a domain name that is confusingly similar to the trade marks registered and used by it, that the Respondent has no rights or legitimate interests in the domain name at issue, and that the Respondent has registered and uses this domain name in bad faith.

B. Respondent

As noted above, the Respondent is in default pursuant to paragraphs 5(e) and 14 of the Rules, and paragraph 7(c) of the Supplemental Rules, as no Response was submitted

Therefore, under paragraphs 5(e) and 14(a) of the Rules, the Panel shall decide this proceeding on the basis of the Complainant’s submissions, drawing such inferences from the Respondent’s conduct that are considered appropriate according to paragraph 14 (b) of the Rules.

 

6. Discussion and Findings

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, these rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy states that the Complainant must prove that each of the three following elements are present:

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

(ii) that the 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 domain name consists of the Trademark in combination with a generic term, namely the Complainant’s principal product, luggage. Previous panels have decided that ‘essential’ or ‘virtual’ identity is sufficient: The Stanley Works and Stanley Logistics, Inc. v. Camp Creek Co., Inc, WIPO Case No. D2000-0113 and Nokia Corporation v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-0102. Applying that test, the Panel finds that the domain name is confusingly similar to the Complainant’s Trademark, since it is essentially or virtually identical to it. The Panel finds that the adding of the word “luggage” to the Trademark does not change the overwhelming impression of similarity. In addition, the term “luggage” is descriptive with respect to the Trademark. Domain names that combine a descriptive term with another’s trademark have under certain circumstances been held to be confusingly similar to the trademark (see, e.g., AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553; Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627). Based on the foregoing, the Panel has no hesitation in concluding that the domain name is confusingly similar to the Trademark owned by the Complainant.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy a respondent can establish its rights or legitimate interests in its domain name if it shows the presence of any of the following circumstances:

“(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] are making a legitimate noncommercial 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.”

Once the Complainant makes out a prima facie case, that the Respondent has no rights or legitimate interests in the domain name, the burden of proof shifts to the Respondent to demonstrate its rights or legitimate interests in the domain name.

The Complainant alleges that the Respondent has no rights or legitimate interests in the domain name. The Complainant further alleges that it has never granted any rights to the Respondent.

Taking into consideration the fact that this condition consists of furnishing evidence of the non-existence of a material fact not in the Complainant’s control, the Panel considers that the Complainant has fulfilled its obligations under this paragraph.

As stated above, the Respondent failed to respond to the Complaint. The Panel will therefore draw such inferences as it considers appropriate under the circumstances (paragraphs 5(e) and 14(a) of the Rules).

The Respondent has not challenged the Complainant’s contentions. The Panel finds it the Complainant’s contentions credible.

Moreover, there is no evidence in the file to show that the Respondent has any rights or legitimate interests in the domain name.

Accordingly, the Panel considers that the Respondent does not have any right or legitimate interest in the domain name.

C. Registered and Used in Bad Faith

The third element to be established by the Complainant is that the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy states the following four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name.

“(i) circumstances indicating that you [Respondent] have registered or you [Respondent] 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 [Respondent] 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 [Respondent] have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you [Respondent] 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 your location.”

The domain name must not only be registered in bad faith, but it must also be used in bad faith (e.g., World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001).

The Panel notes that some panels in certain default cases have accepted credible allegations from a complainant as true, particularly under paragraphs 4(a)(ii) and 4 (a)(iii) of the Policy, regarding the factors that make out illegitimacy of a respondent’s use or otherwise demonstrate the presence or absence of bad faith, (e.g., Luis Cobos v. West North (Nick Handle: JNMTOKTCQD), WIPO Case No. D2004-0182; Microsoft Corporation v. Andrey Tumakov, WIPO Case No. D2002-1039).

The Complainant’s allegations in this case that the disputed domain name has been registered and is being used in bad faith could be accepted as true. That being said, the Panel further states the following:

The Panel considers that the evidence submitted establishes that the choice of the domain name by the Respondent could hardly be a coincidence. First of all, the domain name consists of the Trademark in combination with a generic term, as it relates to the Complainant’s principal product. Further, the domain name is almost exactly the same as the registered domain name of the Complainant (i.e., it is missing only a hyphen). Finally, the domain name reverts to a website directory which leads to numerous websites active in the same field as the Complainant or selling the same kind of products. Accordingly, the Panel considers that the disputed domain name is used as a “click-through” revenue generating site which provides income to the Respondent by inducing Internet users to click through sponsored links. The aim is merely to capture the Complainant’s customers who are interested in Complainant’s products, and to re-direct them to other websites. The conduct of the Respondent is neither legitimate, nor in good faith. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration and use under the Policy, paragraph 4(b)(iv) (e.g., Compagnie Gйnйrale des Йtablissements Michelin CGEM – Michelin & Cie, Michelin Recherche et Technique S.A. v. Horoshiy Inc., WIPO Case No. D2004-0752).

Further, the Panel finds that the circumstances in this case lead to the conclusion of bad faith for the following reasons:

- The disputed domain name may lead customers or potential customers of ANTLER products to believe that they are on the Complainant’s website.

- The Respondent’s use of the domain name has no relation to the Complainant’s activities except for misleading potential customers.

- The Respondent did not actively participate in the proceedings.

As a result, the Panel holds that both elements of paragraph 4(a)(iii) of the Policy have been met. The Panel thus concludes that the Complainant has established that the Respondent registered and is using the 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 <antlerluggage.com> be transferred to the Complainant.


Christian Pirker
Sole Panelist

Dated: June 20, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0619.html

 

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