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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Intuit Inc. v. Whois Privacy Service / Domain Admin c/o whois-privacy.net

Case No. D2008-0656

1. The Parties

The Complainant is Intuit Inc., Mountain View, Califonia, United States of America, represented by Fenwick & West, LLP, United States of America.

The Respondent is Whois Privacy Service / Domain Admin c/o whois-privacy.net, Beijing, China.

2. The Domain Name and Registrar

The disputed domain name <intuitinc.com> is registered with Fabulous.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2008. On April 29, 2008, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain name at issue. On May 1, 2008, Fabulous.com 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 May 6, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 26, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 27, 2008.

The Center appointed Adam Taylor, Mark Partridge and Dr. Hong Xue as panelists in this matter on June 16, 2008. The Panel finds that it was properly constituted. Each member of 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.

On June 30, 2008, the Center discovered that the email address (seemingly that of a privacy service) used to notify the Complaint to the Respondent was the same one listed in the Complaint which erroneously omitted a hyphen.

The facsimile notification of complaint, although seemingly sent to the correct listed fax number, had resulted in a non-delivery message, suggesting a defective fax number.

The hard copy notification of the Complaint had been sent by the Center to the correct (albeit seemingly incomplete address, in Beijing, China) and the courier’s tracking record showed the package as “delivered”.

The Panel ordered the Center to resend the original Complaint notification to the correct Whois-listed email address for the listed registrant of record, inviting the recipient to indicate to the Center within seven days if it intended to submit any response or take any active role in the proceedings and that the communication should indicate that if no reply was received by that time the Panel expected to proceed to issue a decision on the merits. The Center sent such email on July 1, 2008, and no reply was received within the seven days. Accordingly the Panel has proceeded to issue its decision on the merits.

4. Factual Background

The Complainant is a provider of business and financial management software for individuals, small businesses, and accounting and tax professionals. The Complainant has used its INTUIT trademark in connection with such products and related services since 1984.

The Complainant’s flagship products include Quicken, Quickbooks, and Turbotax software. The Complainant, itself, has been recognized by Fortune Magazine as the number one most admired software company in United States of America and one of the 100 best companies to work for in the years 2006, 2007, and 2008.

The Complainant owns many INTUIT-based United States trademark registrations including trademark number 1821148 for the word INTUIT in class 9 registered on February 15, 1994.

The Respondent registered the disputed domain name on February 11, 2004.

As of April 10, 2008, there was a website at the disputed domain name comprising a list of affiliate links to websites offering financial and accounting software and services including the Complainant’s own products.

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

Since 1984, the Complainant has expended great resources in promoting and advertising its INTUIT-branded products and services. The Complainant’s products have revolutionized how people manage their personal and small business finances.

The Complainant submits that the disputed domain name is confusingly similar to the Complainant’s INTUIT mark. The addition of the corporate identifier “inc.,” an abbreviation of the term “incorporated” is not sufficient to escape a finding of similarity because it is well established that the addition of descriptive or generic words to a mark does nothing to change an otherwise identical or confusingly similar domain.

Moreover, the disputed domain name is Complainant’s exact corporate name – Intuit Inc. As a result, the disputed domain name misleads visitors into believing that the domain name is or may very well be Complainant’s corporate website.

Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interest in the disputed domain name. The Respondent has no legitimate relationship to Complainant giving rise to any license, permission, or authorization for use of the domain name. Also, the Respondent is not commonly known by the names “Intuit” or “Intuit Inc.” and owns no relevant trademark applications or registrations.

Rather, the Respondent has simply parked the domain, offering links to third party websites that offer financial and accounting software and services directly competing with the Complainant’s INTUIT-branded products and services. Using a confusingly similar domain name to divert traffic to the Respondent’s parked site is not a bona fide offering of goods or services, nor is it a legitimate non-commercial or fair use of the domain name. The Respondent’s only plausible reason to register and use the disputed domain name is to take unfair advantage of the recognition associated with the Complainant’s INTUIT mark by diverting consumers from the Complainant’s website to its parked site, where the Respondent is benefiting from the confusion and diversion by receiving pay-per-click commissions.

Registered and Used in Bad Faith

The Complainant submits that here, the Respondent’s activities fall squarely into Paragraph 4(b)(iv) of the Policy as the Respondent has set up the disputed domain name to resolve to a parked website featuring links to third party websites that offer financial and accounting software and services directly competing with the Complainant’s INTUIT-branded products and services. The Respondent’s only plausible reason to register and use the disputed domain name is to take unfair advantage of the recognition associated with the Complainant’s INTUIT mark by diverting consumers looking for the Complainant’s INTUIT-branded products and services from the Complainant’s website to the Respondent’s sites, where it benefits from the confusion and diversion by receiving pay-per-click commissions. Therefore, there is no question that the Respondent has registered and is using the disputed domain name in bad faith.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant undoubtedly has rights in the mark INTUIT by virtue of its registered trade marks as well as its extensive trading activities under that name.

Disregarding the domain suffix, the disputed domain name differs from the Complainant’s trademark only by the addition of the generic word “inc”. This term is insufficient to differentiate the domain name and trade mark; rather, it enhances the connection as it reflects the exact corporate name of the Complainant.

The Panel concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Panel therefore finds that the Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant must establish at least a prima facie case under this heading and, if that is made out, the evidential onus shifts to the Respondent to rebut the presumption of absence of rights or legitimate interests thereby created. See, e.g., Atlas Copco Aktiebolag v. Accurate Air Engineering, Inc., WIPO Case No. D2003-0070.

The Complainant has not licensed or otherwise authorized the Respondent to use its trademark.

As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse and profit from Internet users seeking the Complainant. Such use of the disputed domain name could not be said to be bona fide.

There is no evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply.

The Panel finds that the Complainant has established a prima facie case of lack of rights and legitimate interests and there is no rebuttal by the Respondent.

The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of the Policy.

C. Registered and Used in Bad Faith

The Panel is satisfied that the Respondent registered the disputed domain name with the Complainant in mind. The disputed domain name includes the Complainant’s distinctive mark INTUIT as well as the generic term “inc”, denoting the Complainant’s exact corporate name. Furthermore the Respondent has used the disputed domain name for a website with affiliate links financial and accounting software and services including the Complainant’s own products.

The Respondent has not come forward to deny the Complainant’s assertions of bad faith. It is difficult to conceive of any genuine reason why the Respondent would wish to register the disputed domain name and the Respondent has offered no explanation.

The Panel concludes from the foregoing that the Respondent has registered and used the disputed domain name in bad faith in accordance with paragraph 4(b)(iv) of the Policy. The Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. The Panel therefore finds that the Complainant has established the third element 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 <intuitinc.com> be transferred to the Complainant.


Adam Taylor

Presiding Panelist

Mark Partridge
Panelist

Dr. Hong Xue

Panelist

Dated: July 14, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0656.html

 

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