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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

International Business Machines Corporation v. Scot banner

Case No. D2008-0965

1. The Parties

The Complainant is International Business Machines Corporation of Armonk, New York, the United States of America, represented by Compagnie IBM France Intellectual Property Department of La Gaude, France.

The Respondent is Scot banner of Denmark (or “Denmerk” as listed in the Registrar’s verification and in the WhoIs information).

2. The Domain Name and Registrar

The disputed domain name <ibmdownload.com> (the “Domain Name”) is registered with OnlineNic, Inc. d/b/a China-Channel.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on June 25, 2008 and in hard copy on June 30, 2008.

The Center transmitted its request for registrar verification to the Registrar by email on June 30, 2008. The Registrar replied by email on July 1, 2008, confirming that the Domain Name was registered with it, that the Respondent was the current registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the Domain Name, that the Domain Name would remain locked during this proceeding, that the registration agreement was in English and that the Respondent had submitted in that agreement to the jurisdiction at the location of the Registrar’s principal office for court adjudication of disputes concerning or arising from the use of the Domain Name. The Registrar also provided the contact details on its WhoIs database in respect of the Domain Name. The Registrar also noted that it had not received a copy of the Complaint.

The Center verified that the Complaint satisfied the formal requirements of 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 3, 2008. A copy of the notification was sent to the Registrar. The notification was sent to the Respondent by email alone in the absence of any valid postal address in the contact details held by the Registrar. In the circumstances, the Panel is satisfied that the Center employed reasonably available means to achieve actual notice to the Respondent in accordance with paragraph 2(a) of the Rules.

In accordance with paragraph 5(a) of the Rules, the due date for Response was July 23, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on July 24, 2008.

The Center appointed Jonathan Turner as the sole panelist in this matter on July 31, 2008. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.

Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.

4. Factual Background

The Complainant’s IBM mark is registered in numerous countries and is ranked by Interbrand as the third most valuable brand in the world.

The Domain Name was registered on April 3, 2007. It resolves to a website which apparently offers for sale used software packages including Adobe Acrobat Professional, Adobe Photoshop and Corel Paint Shop Pro. The home page displays a banner containing the words “IBM Download – Best Choice”, with “IBM” in a larger font, followed by the words “Used Software Centre”. A notice at the foot of the home page states “Copyright © 2005-2007 IBM download”.

The postal addresses and telephone numbers for the Registrant, Technical Contact and Billing Contact provided to the Registrar are all listed in the Registrar’s WhoIs database as “Denmerk Denmerk DK 6598425987” and “+1.11111111” respectively. The only other contact details provided in the WhoIs database are the email addresses “mah_mad2002@yahoo.com” and “info@ibmdownload.com”. On March 20, 2008, the Complainant sent a cease and desist letter to the Respondent at the former email address, to which it received no response.

5. Parties’ Contentions

A. Complainant

The Complainant points out that the Domain Name comprises its registered mark IBM together with the generic term “download” and the generic suffix “.com”. Accordingly, the Complainant contends that the Domain Name is identical or confusingly similar to a mark in which it has rights.

The Complainant maintains that the Respondent has no rights or legitimate interests in respect of the Domain Name. It states that the Respondent is not a reseller or business partner of the Complainant, does not have any relationship with it and is using the Domain Name to sell software not supplied by it. The Complainant contends that such use of the Domain Name does not give rise to rights or legitimate interests.

Finally, the Complainant submits that the Domain Name was registered and is being used in bad faith to take advantage of the reputation of the Complainant’s mark to sell software not supplied by the Complainant. The Complainant also argues that the Respondent’s provision of false contact details and failure to reply to its cease and desist letter are further indications of bad faith.

The Complainant requests that the Domain Name be transferred to it.

B. Respondent

As noted above, the Respondent did not file a Response or otherwise reply to the Complainant’s contentions.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (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. Each of these requirements will be considered in turn below.

In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s default in submitting a response as it considers appropriate. This includes the acceptance of plausible allegations of the Complainant which have not been disputed.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has registered rights in the mark IBM and that the Domain Name is confusingly similar to it.

The addition of the word “download”, which is descriptive of a conventional means of provision of software, one of the Complainant’s main products, and of the “.com” gTLD suffix does not avoid confusion. On the contrary, many Internet users would assume that the Domain Name identifies a website from which they can download software supplied by the Complainant.

The first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

The Respondent’s apparent use of the Domain Name to sell software not supplied by the Complainant does not constitute a bona fide offering of goods or services. On the contrary, it is a use of the Domain Name in bad faith which takes unfair advantage of the reputation of the Complainant’s mark and of the Domain Name’s confusing similarity with that mark to divert Internet users seeking the Complainant’s products to a website which offers other products.

It seems clear that the Respondent is not commonly known by the Domain Name and that he is not making legitimate noncommercial or fair use of it.

There does not appear to be any other basis on which the Respondent could claim to have rights or legitimate interests in respect of the Domain Name.

The second requirement of the Policy is satisfied.

C. Registered and Used in Bad Faith

The Panel finds that the Respondent is using the Domain Name intentionally to attract Internet users for commercial gain to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation or endorsement of his website and of the products offered for sale on it. In accordance with paragraph 4(b)(iv) of the Policy this constitutes evidence that the Domain Name was registered and is being used in bad faith.

There is no reason to believe that the Domain Name was registered with any other intent. The Respondent’s provision of false contact details is further evidence that the Domain Name was registered in bad faith.

The Panel finds that the Domain Name was registered and is being used in bad faith. The third requirement of the Policy is satisfied.

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 <ibmdownload.com> be transferred to the Complainant.

Jonathan Turner
Sole Panelist

Date: August 12, 2008