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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

ADT Services AG. v. Global Access/Moniker Privacy Services

Case No. D2008-0680

 

1. The Parties

The Complainant is ADT Services AG. of Schaffhausen, Switzerland, represented by Christopher & Weisberg, P.A. of Florida, United States of America.

The Respondents are Global Access of Dublin, Ireland and Moniker Privacy Services, of Pompano Beach, Florida, United States of America (collectively the “Respondent”).

 

2. The Domain Name and Registrar

The disputed domain name <wwwadt.com> (the “Domain Name”) is registered with Moniker Online Services, LLC (the “Registrar).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2008, stating both the Registrar and Moniker Privacy Services as the Respondent. On May 2, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 6, 2008, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 7, 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 amendment to the Complaint on May 12, 2008, adding Global Access as Respondent to the proceedings. Further amendments to the Complaint were received on May 28, 2008 and May 29, 2008. By the last amendment of May 29, 2008 the Registrar was removed as Respondent, thereby leaving Global Access and Moniker Privacy Services as the Respondents. The Center verified that the Complaint together with the amendments 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 May 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was June 19, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 20, 2008.

The Center appointed Alfred Meijboom as the sole panelist in this matter on July 16, 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 corporation organized under the laws of Switzerland which owns several trademark registrations. The Complainant has based its Complaint on three ADT word marks (registration numbers 0710708, 1034716 and 0710507), the ADT ALWAYS THERE word mark (registration number 2586569), the ADT ADDRESS ALERT device mark (registration number 2789471), the ADT MONOGRAM word mark (registration number 0846966) and the 1-800-ADT-ASAP word mark (registration number 2734955), all registered as United States trademarks with the United States Patent and Trademark Office. The ADT word marks are hereinafter referred to as the “ADT-trademarks”. The oldest ADT word mark with registration number 0710507 has a priority date of January 31, 1961. Under these trademarks, the Complainant sells and offers for sale home security products and services throughout the world, including the United States. The Complainant licenses the right to use the ADT-trademarks to other ADT group companies.

The Domain Name was registered on October 11, 2006. The Domain Name leads to a website containing various sponsored links to third parties’ websites that offer alarm and security system products.

 

5. Parties’ Contentions

A. Complainant

The Complainant has asserted that its products and services are well-known and that the ADT-trademarks are distinctive and famous. The Complainant alleged that the Domain Name is identical and confusingly similar to the ADT-trademarks, under reference to ADT Services A.G. v. Alarm Services, Cencom Inc., Safeguard America, Saveonmyalarm.com, WIPO Case No. D2007-0459 and ADT Services AG v. ADT Sucks.com, WIPO Case No. D2001-0213.

The Complainant has put forward that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant has never granted the Respondent an express or implied license to use its trademarks, nor has the Respondent been commonly known by the Domain Name. Further, according to the Complainant, the Respondent is not making a legitimate noncommercial or fair use of the Domain Name by misleadingly diverting consumers and tarnishing ADT trademarks, thereby referring to V&S Vin & Spirit AB v. Coreswood Limited, WIPO Case No. D2006-0594.

Furthermore, the Complainant contended that the Domain Name was registered and is being used in bad faith. The Complainant stated that by using the Domain Name, the Respondent intentionally seeks to obtain commercial gain by use of the ADT-trademarks on the related website. The Complainant further asserted that circumstances, like the Respondent being a privacy registrar, indicate that the Respondent’s registration primarily serves the purpose of confusing consumers, if even to compete. According to the Complainant, the Respondent’s use of the Domain Name prevents the Complainant from reflecting the ADT-trademarks and other marks in corresponding domain names. Finally, the Complainant stated that the Respondent was necessarily aware of the Complainant’s trademarks since the marks are specifically used at the website under the Domain Name, referring to ADT Services A.G. v. Alarm Services, Cencom Inc., Safeguard America, Saveonmyalarm.com , WIPO Case No. D2007-0459 . Moreover, the Respondent has been contacted by the Complainant in November 2007.

The Complainant requests the Panelist to issue a decision that the Domain Name be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the requested remedy can be granted if the Complainant asserts and proves each of the following:

A. that the Domain Name is identical or confusingly similar to a trademark or a service mark in which Complainant has rights; and

B. that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

C. that the Domain Name has been registered and is or was being used in bad faith.

Respondent Identity

The Respondent Moniker Privacy Services, a privacy service provider, was listed as the registrant of the Domain Name in the Whois register prior to the filing of the Complaint. Following the filing of the Complaint, the Registrar notified the Center that the registrant of the Domain Name was Global Access. In case of use of privacy services, panels have found that both the privacy service provider and the registrant communicated to the Center by the registrar in response to the request to verify the registrant, are properly identified as a respondent (see e.g. MySpace, Inc. v. Patrick F. Bily, Domains by Proxy, Inc., WIPO Case No. D2007-0633 and Zedge Ltd. v. Moniker Privacy Services / Aaron Wilson, WIPO Case No. D2006-1585). Accordingly, the Panel finds that both Moniker Privacy Services and Global Access are appropriate respondents, and in this decision they are conveniently referred to jointly and severally as the “Respondent”.

A. Identical or Confusingly Similar

The Complainant holds the ADT-trademarks and other trademarks including ADT as mentioned in paragraph 4 above. Furthermore, it has been established in previous panel decisions that the Complainant has rights in the term ADT (e.g. ADT Services A.G. v. Ivan Valencia, WIPO Case No. D2007-1213 and ADT Services A.G. v. Direct Navigation Associates/Moniker Privacy Services, WIPO Case No. D2007-1207 ).

First of all, for the purpose of assessing whether the Domain Name is identical or confusingly similar to the trademark in which the Complainant has rights, the “.com” suffix is disregarded, it being a necessary component. Further, the Domain Name is not identical to any of the ADT-trademarks, because of the addition of “www” before “adt”. With regard to this “www” prefix, this Panel endorses the majority view of panels that a domain name with a prefix “www” affixed to the trademark complainant relies on is substantially similar to the relevant trademark (e.g. CSC Holdings, Inc. v. Elbridge Gagne, WIPO Case No. D2003-0273). The Panel is of the opinion that the Domain Name has been registered for the purpose of typo squatting, and agrees with the panel in 1st Auto Transport Directory, Inc. v. i Planet Consulting, Inc., WIPO Case No. D2006-1212 that “typo squatted’ domain names, if they have their desired effect, are by definition confusingly similar to trademarks”. As a result, the Panel considers the Domain Name to be confusingly similar to the Complainant’s ADT trademark.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, the Complainant should prove that the Respondent has no rights or legitimate interests in the Domain Name. According to the consensus view among panels, this condition is met if the Complainant makes a prima facie case that the Respondent has no rights or legitimate interests, and the Respondent fails to show one of the three circumstances mentioned in paragraph 4(c) of the Policy.

The Complainant contends that it has not licensed the Respondent to use its ADT trademark and the Respondent did not dispute the Complainant’s claim to that effect. The Respondent has not provided any evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the Domain Name. Especially, there is no evidence that the Respondent is known by the Domain Name, nor could the Panel establish any indications that the Respondent was previously known under the Domain Name or is using the Domain Name for bona fide offering of goods or services, or for noncommercial or fair use. In fact, the Domain Name offers sponsored links for competitive products. For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.

C. Registered and Used in Bad Faith

Not only must the Complainant prove that the Domain Name is being used in bad faith, but also that the Domain Name was registered in bad faith. The Domain Name wholly incorporates the ADT-trademarks in combination with the prefix “www”. Furthermore, the Domain Name directs consumers automatically to a website offering goods and services that compete with those offered by the Complainant under the ADT-trademarks. Given the fact that the ADT-trademarks were specifically used at the website linked to the Domain Name, the Panel is of the opinion that the Respondent must have been familiar with the Complainant’s existence and the ADT-trademarks. Consequently, the Panel finds that the Domain Name was registered in bad faith.

The Complainant must also prove that the Respondent uses the Domain Name in bad faith.

In accordance with paragraph 4(b) of the Policy, an indication of use in bad faith is found where the Respondents are found to be intentionally attempting to attract, for commercial gain, Internet users of the website at the Domain Name by creating a likelihood of confusion with the Complainants’ trademark as to the source, sponsorship, affiliation, or endorsement of the website or of a product or service on the website.

The Respondent has generated traffic to the website linked to the Domain Name by creating a likelihood of confusion with the ADT-trademarks. The Respondent appears to have sought to divert people who mistyped the ADT-trademarks to its website containing sponsored links to earn click-through revenue or possibly to disrupt the Complainant’s business. This view is supported by the view expressed in Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568 that “[T]ypo squatting is virtually per se registration and use in bad faith. It is difficult to conceive of circumstances that would overcome the inference that the typo squatter “intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] website…by creating a likelihood of confusion with the complainant’s mark as to the source” of the website. Here such conduct was undertaken to send Complainant’s customers to a site that promoted directly competing services.” Therefore, the Panel concludes that the Respondent’s use of the Domain Name satisfies the requirement of paragraph 4(a)(iii) of the Policy that the Domain Name is being used 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 <wwwadt.com> be transferred to the Complainant.


Alfred Meijboom
Sole Panelist

Dated: July 23, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0680.html

 

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