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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ALSTOM v. Domain by Proxy, Inc./ Broadcast Technology LLC

Case No. D2008-1868

1. The Parties

The Complainant is ALSTOM, 3, Levallois Perret, France, represented by Cabinet Dreyfus & AssociГ©s, France.

The Respondents are Broadcast Technology LLC, Kiev, Ukraine and Domain by Proxy, Inc., Scottsdale, Arizona, United States of America.

2. The Domain Name and Registrar

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

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2008. On December 4, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 5, 2008, GoDaddy.com, Inc. 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 December 9, 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 December 12, 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” or “UDRP”), 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 December 15, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2009.

The Center appointed David Perkins as the sole panelist in this matter on January 15, 2009. 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

4.A The Complainant

4.A.1 The Complainant, formerly GEC Alsthom, changed to its present name Alstom in 1998.

4.A.2 The Complainant is a multinational company employing 76,000 people with operations in 70 countries worldwide. It is a global leader in power generation and rail transport infrastructure. Its sales during fiscal year 2007/2008 totaled Euros 16.9 billion.

4.A.3 In its integrated power plant, power production services and air quality control systems businesses, Alsthom is the world leader, supplying more than 15% of the world’s installed power generation capacity. One in four of the world’s light bulbs is powered by Alsthom technology. It provides turnkey integrated power plant solutions and associated services for a wide variety of energy sources, including hydro, gas and coal.

4.A.4 In the field of rail transport, Alsthom has an 18% share of rail transportation worldwide. It supplies rolling stock, transport infrastructure and signaling, maintenance equipment and global rail system. It is the world’s largest company in this field. It produced the TGV high speed train in 1978 and today has a world leading position in the production of the fourth generation of very high speed trains. On April 3, 2007 it achieved the world rail speed record at a speed of 574.8 km/h. It also has a worldwide number two ranking as a producer of urban transport. One in four metro systems and one in three tramways worldwide have been produced by Alsthom.

4.A.5 Alsthom also built the world’s largest luxury cruise liner, the Queen Mary II.

The Complainant’s ALSTOM registered Trademarks

4.A.6 The Complainant is the owner of numerous trademark registrations for ALSTHOM worldwide, including the following:

Country

Reg. No.

Trademark

Class(es)

Dates of Application and Registration

United States of America

2,773,410

ALSTOM and logo

7: 9: 11: 12: 37: 39 to 43 and 45

Filed: November 1, 2002 Registered: October 14, 2003

United States of America

2,819,079

ALSTOM and logo

7: 9: 11: 12: 37: 39 to 43 and 45

Filed: November 1, 2002

Registered: March 2, 2004

United States of America

2,898,433

ALSTOM (Stylised)

1: 6: 7: 9: 11 – 13: 16: 17: 19: 21: 24 and 35 to 42

Filed: October 9, 1998 Registered: November 2, 2004

United States of America

2,726,163

ALSTOM

1: 6: 7: 9: 11 – 13: 16: 17: 19: 21: 24 and 35 to 42

Filed: October 8, 1998

Registered: June 17, 2003

European Community Trademark (CTM)

000948729

ALSTOM

1: 2: 6: 7L: 9: 11 – 13: 16: 17: 19: 24 and 35 to 42

Filed: September 30, 1998

Registered: August 8, 2001

European Community Trademark (CTM)

000948802

ALSTOM

(Stylised)

1: 2: 6: 7L: 9: 11 – 13: 16: 17: 19: 24 and 35 to 42

Filed: September 30, 1998

Registered: June 6, 2002

International Trademark registered in 56 countries

706,792

ALSTOM

1: 2: 4: 6: 7: 9: 11 – 13: 16: 17L: 19: 24 and 35 to 42

Filed: August 28, 1998

International Trademark registered in 56 countries

706,360

ALSTOM

(Stylised)

1: 2: 4: 6: 7: 9: 11 – 13: 16: 17L: 19: 24 and 35 to 42

Registered: August 28, 1998

The Complainant’s ALSTOM Domain Names

4.A.7 The Complainant is owner of the following domain names incorporating the ALSTOM trademark.

Domain Names

Date Registered

<alstom.com>

January 20, 1998

<alstom.co.uk>

June 15, 1998

<alstom.net>

April 1, 2000

<alstom.org>

April 1, 2000

<alstom.tv>

October 11, 2000

<alstom.be>

October 13, 2000

<alstom.jp>

May 7, 2001

<alstom.info>

July 31, 2001

<alstom.biz>

November 19, 2001

<alstom.cc>

October 29, 2002

<alstom.cn>

July 7, 2004

<alstom.eu>

April 1, 2006

<alstom.mobi>

June 12, 2006

<myalstom.com>

January 20, 2003

<myalstom.net>

January 20, 2003

<myalstom.org>

January 20, 2003

4.A.8 The Complainant discovered that the disputed domain name had been registered on July 20, 2008 and a cease and desist letter dated September 22, 2008 was sent (by email and by registered post) to the Respondent, Domain by Proxy, Inc. No reply was received to that letter.

4.B. The Respondents

4.B.1 In the absence of a Response, nothing is known of either Respondent except that the WHOIS database of GoDaddy.com, Inc. shows Domains by Proxy, Inc as the registrant but that the Registrant of the disputed domain name was identified as Broadcast Technology LLC by GoDaddy.com, Inc.

4.B.2 The disputed domain name was (as noted in paragraph 4.A.8 above) created on July 20, 2008.

5. Parties’ Contentions

5.A. Complainant

Identical or Confusingly Similar

5.A.1 The disputed domain name <allstomy.com> misspells the ALSTOM trademark by the addition of a second letter “L”. The letter Y” is added to the end of the domain name.

5.A.2 The Complainant says that, phonetically, the extra letter “L” makes no difference, citing in support the decision in Louis Vuitton v. Net Promotion WIPO Case No. D2000-0430 where the disputed domain name <luisvuitton> was held to be confusingly similar to the well-known LOUIS VUITTON trademark.

5.A.3 As to the additional letter “Y”, the Complainant says this does not avoid confusing similarity to the ALSTOM trademark. Further, it is a reversed contraction of “myallstom”, which is used by the Complainant in its <myalstom.com>, .net and .org domain names [see, paragraph 4.A.7 above].

5.A.4 In sum, the Complainant says that its ALSTOM name and trademark is known by the public in many countries of the world in relation to the goods and services provided under that trademark, such that the public would reasonably assume that the disputed domain was owned by or related to the Complainant. Consequently, the disputed domain name is confusingly similar to the ALSTOM trademark.

Rights or Legitimate Interests

5.A.5 The Complainant’s case is as follows. First, the Respondents are not licensed or otherwise authorized to use the ALSTOM trademark.

5.A.6 The ALSTOM trademarks were registered and used in 1998, some 20 years before the disputed domain name was registered.

5.A.7 The Respondent, Domain by Proxy, Inc is a company providing anonymity for domain name registrants. The Complaint gives no information in respect of the Respondent, Broadcast Technology LLC of the Ukraine. In the absence of a Response, there is nothing to indicate that either Respondent could demonstrate any of the circumstances set out in paragraph 4(c) of the Policy. In this respect, the Complainant cites GEA AG v. Josue da Silva WIPO Case No. D2003-0727. There the disputed domain name was <gea.biz>. No Response was submitted. The Panelist took the position that the Respondent must bear the consequences of providing no information or explanation, which he considered raised serious doubts as to the legitimacy of the registration of the disputed domain name. In the circumstances, the Panel found the requirement of paragraph 4(a)(ii) of the Policy met.

5.A.8 Finally, the Complainant says that, given the notoriety of the ALSTOM trademark and the confusing similarity with that trademark of the disputed domain name, the Respondents cannot have rights to or legitimate interest in the domain name.

Registered and Used in Bad Faith

5.A.9 As to registration in bad faith, the Complainant again points to the well-known status of the ALSTOM trademark worldwide. In that respect, the Complainant exhibits that a Google search using ALSTOM as the keyword always first refers to the Complainant, its products or news items about the Complainant. The Complainant also cites the decision in Alstom v. Cameron Jackson WIPO Case No. D2007-1022 which involved eleven disputed domain names, all prefixed with the ALSTOM mark. Finding for the Complainant in that case, the Panelist said that the ALSTOM trademark was not only well known in Australia, where the Respondent resided, but also around the world.

5.A.10 Against that background, the Complainant asserts that the Respondents must be taken to have been aware of the ALSTOM mark, so that using that mark in creating the disputed domain name clearly indicates registration in bad faith and an intention improperly to derive revenue from use of that domain name.

5.A.11 As to use in bad faith, the Complainant observes that no webpage had been established for the disputed domain name more than 4 months after registration on July 20, 2008 at the time the Complaint was filed on December 3, 2008.

5.A.12 The Complaint cited the case of Alstom Bouygues v. Webmaster WIPO Case No. D2008-0281, where the Panel decided that, in the absence of a license or other permission from the Complainant to use its widely known BOUYGUES and ALSTOM trademarks, no actual or contemplated bona fide or legitimate use of the disputed domain, <bouyguesalstom.com>, could reasonably be claimed.

5.A.13 In a case, which the Complainant says involved circumstances analogous to those in the present case - namely, Lincoln Property Company v. LPC WIPO Case No. D2001-0238 – the Panelist held that the following circumstances are, inter alia, indicative of bad faith use even where, as here, there has been no actual use of the disputed domain name. First, deliberate steps to conceal the true identity of the owner of the disputed domain name, as in this case by using the Respondent, Domain by Proxy, Inc. Second, failing to provide conventional information for one engaged in proper business activities. Third, failure to provide sufficient contact information to the Registrar. Fourth, where the disputed domain name “… is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith”.

5.A.14 Since the Respondents have engaged in all those four activities, the Complainant says it is clear that they have engaged in both bad faith registration and use.

5.B Respondents

As stated, no Response has been submitted by either Respondent.

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following in order to succeed in an administrative proceeding

(i) that the Respondent’s domain name 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.

6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent’s rights or legitimate interest in the domain name in issue.

6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.

6.4 As stated, the circumstances set out in paragraph 4(b) and 4(c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognizes that other circumstances can be evidence relevant the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.

Identical or Confusingly Similar

6.5 Although based in France, the Complainant is a very large and well-known multinational organisation. The statistics set out in paragraph 4.A.2 above speak for themselves. Additionally, ALSTOM is a distinctive and well known trademark, registered worldwide for a variety of classes of goods and services.

6.6 The presence of a second letter “L” in the distinctive element of the disputed domain name does little to distinguish visually that element of the name from the trademark ALSTOM. Phonetically, they are identical. In both those respects, the disputed domain name is plainly confusingly similar to the Complainant’s ALSTOM trademark.

6.7 The question is whether addition of the letter “Y” to the end of the disputed domain name <allstomy.info>, is sufficient to avoid that finding of confusing similarity between the distinctive element of the disputed domain name and the ALSTOM trademark. Given the notoriety of the ALSTOM trademark, the Panel is persuaded by the proposition that the disputed domain name could reasonably be regarded by the public as owned by or in some way related to the Complainant. This is, in the Panel’s view, the more likely having regard to the Complainant’s use of its <myalston.com>: net; and .org domain names, the disputed domain name in effect being no more than a reversal of the “my” element of those domain names. In addition to causing a reasonable likelihood of actual confusion with the Complainant, the Panel would regard the disputed domain name as confusingly similar to the Complainant’s ALSTOM mark on a direct comparison in any event.

6.8 In all the circumstances, the Panel is satisfied that the Complaint meets the requirements of paragraph 4(a)(i) of the Policy.

Rights or Legitimate Interests

6.9 On the facts as set out in section 5 above, in the light of the Panel’s decision as to confusing similarity and in the absence of a Response, the Panel can see no basis for finding that the Respondents, or either of them, can have rights or legitimate interests in the disputed domain name. Accordingly, the Complaint satisfies paragraph 4(a)(ii) of the Policy.

Registered and Used in bad Faith

6.10 As to use in bad faith, it does not appear that any actual use of the disputed domain name has been made. The consensus view of the Panelists applying the Policy is that lack of active use of the disputed domain name does not as such prevent a finding of bad faith. Examples of circumstances that can indicate bad faith include the Complainant having a well-known trademark, no Response to the Complaint, concealment of identity and the impossibility of conceiving a good faith use of the disputed domain name Telstra Corporation Limited v. Nuclear Marshmallow WIPO Case No. D2000-0003.

6.11 All of those circumstances are present in this case and, accordingly, the Panel finds that the Complaint meets the two requirements of paragraph 4(a)(iii) 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 <allstomy.info> be cancelled as requested by the Complainant.


David Perkins
Sole Panelist

Dated: January 27, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1868.html

 

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