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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Oreck Corporation v. Whois Privacy Protection Services/Ravi Singh

Case No. D2009-0506

1. The Parties

The Complainant is Oreck Corporation of Nashville, Tennessee, United States of America, represented by Winston & Strawn LLP, United States.

The Respondent is Whois Privacy Protection Services/Ravi Singh of New Delhi, India.

2. The Domain Name and Registrar

The disputed domain name <oreckairpurifier.com> is registered with Lead Networks Domains Pvt. Ltd.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 18, 2009. On April 20, 2009, the Center transmitted by email to Lead Networks Domains Pvt. Ltd. a request for registrar verification in connection with the disputed domain name. On April 30, 2009, Lead Networks Domains Pvt. Ltd. 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 May 1, 2009 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 7, 2009. The Center verified that the Complaint together with the amended 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").

The Complaint as originally submitted was directed to John Doe as the Respondent, because this name had appeared as the registrant for the disputed domain name <oreckairpurifier.com> in the WHOIS pages located at "www.godaddy.com" consulted by the Complainant. Subsequent to the filing of the Complaint, the Center consulted the publicly available Whois database and confirmed that the registrar of the disputed domain name was Lead Networks Domains Pvt. Ltd. and obtained from the latter the correct name of the registrant, namely Whois Privacy Protection Services/Ravi Singh.

At the request of the Center, the Complainant amended the Complaint in which it described the Respondent as "John Doe and Ravi Singh". The Panel is of the view that the correct name of the Respondent is "Whois Privacy Protection Services/Ravi Singh" as disclosed by the registrar.

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 12, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on June 3, 2009.

The Center appointed Joan Clark as the sole panelist in this matter on June 16, 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

The Complainant is a long-time manufacturer of vacuum cleaners and other home cleaning products. It is the owner of many trademarks registered in the United States including several for the word "oreck", the first of these submitted by the Complainant having been registered in 1987.

The disputed domain name, <oreckairpurifier.com>, was created on March 11, 2004.

5. Parties` Contentions

A. Complainant

The Complainant states that it is a recognized and distinguished manufacturer of vacuum cleaners and other home cleaning products. It contends that it manufactures cleaning equipment for the hotel industry and hotel consumers, which it then sells in retail stores throughout the world.

The Complainant has produced a list of 50 marks, all of which contain the word "oreck" and some of which are for the mark ORECK alone. Copies of the registration records for these trademarks have not been produced, and it is not clear as to whether they are service marks, as the Complainant indicated in one instance, or whether they are trademarks for the goods manufactured by the Complainant. These submissions show that the mark ORECK has been used since at least 1964 and is associated with the Complainant and its cleaning equipment and products.

The Complainant asserts that its ORECK marks have acquired considerable goodwill and are among the Complainant`s most valuable assets.

The Complainant maintains that the disputed domain name is confusingly similar to and incorporates the marks owned by the Complainant, that the Respondent has no rights or legitimate interests in the domain name, and that the Respondent registered and is using the domain name in bad faith.

The Complainant refers to the Respondent`s website, where the disputed name <oreckairpurifier.com> appears, and below which there are links to air purifier products and vacuum cleaners including links labelled "airpurifier" and "home airpurifier".

The Complainant states on information and belief that the Respondent gets paid for each click on one of these links.

Further, the Complainant avers the Respondent has made no effort to commence use of the domain name in connection with a bona fide offering of goods or services.

The Complainant continues that the Respondent is not commonly known by the domain name and is not making a legitimate non commercial or fair use of the domain name, but has been misleadingly diverting customers from the Complainant`s business with the intent of commercial gain.

The Complainant concludes by requesting that the disputed domain name <oreckairpurifier.com> be transferred to the Complainant.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy states that, in order to be successful with respect to a disputed domain name, the Complainant has the burden of proving that all three elements are present in the Complaint, namely:

(i) that the disputed 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 disputed domain name; and

(iii) that the disputed domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out four illustrative circumstances which, for the purpose of paragraph 4(a)(iii) above, shall be evidence of registration and use of a domain name in bad faith but are not limitative.

Paragraph 4(c) of the Policy sets out three illustrative circumstances each of which, if proven, shall demonstrate the Respondent`s rights or legitimate interests in the disputed domain name for purposes of paragraph 4(a)(ii) above.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name <oreckairpurifier.com> is confusingly similar to the registered marks of the Complainant which consist of the word "oreck" alone, including U.S. Registration No. 1,454,954,and is also confusingly similar to various U.S. registered trademarks of the Complainant such as ORECK CLEAN HOME registered under No. 3,238,017 and ORECK FRESH AIR registered under No. 2,255,054.

The first and distinctive part of the disputed domain name, "oreck", is identical to several registered trademarks of the Complainant. The addition of the descriptive portion of the disputed domain name, "airpurifier", emphasizes the confusion with the Complainant`s marks as it describes the general purpose for which the Complainant`s products and/or services offered under its marks are available. The appearance in the domain name of the gTLD suffix ".com" does not detract from the issue of confusing similarity.

The Complainant states that it is the owner of the ORECK service mark and related names and marks, including but not limited to ORECK. While the Complainant has chosen not to produce copies of the registrations which would have been a convenience for the Panel, in view of the Complainant`s assertion that it is the owner of these marks1, together with the certification by the signatories of the Complaint that the information contained in the Complaint is to the best of the Complainant`s knowledge complete and accurate, coupled with the absence of any challenge from the Respondent, the Panel accepts that the Complainant has rights in the ORECK marks referred to above.

The Panel concludes that the disputed domain name is confusingly similar to the trade mark ORECK and other marks including the word "oreck" in which the Complainant has rights. The first element required for the Complainant to succeed has been established.

B. Rights or Legitimate Interests

The Respondent has failed to answer the Complaint, has not rebutted the Complainant`s assertions and has not produced any evidence which would indicate that he has any rights or legitimate interests in the disputed domain name.

There is no evidence that the Respondent has made any use of or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. He has merely provided on his webpage links to other sources, which does not constitute a bona fide offering for sale by the Respondent.

There is no evidence that the Respondent was previously known by the disputed domain name, and the Respondent has not been authorized by the Complainant to use its trademark in the disputed domain name.

The Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name and the second element required for the Complainant to succeed has been established.

C. Registered and Used in Bad Faith

The Respondent, not having proffered a Response, has not explained why he chose a domain name with its first and distinctive part consisting of the trademark ORECK used for some thirty years previously by a company engaged in the same line of business as implied by the disputed domain name, namely cleaning products.

The Complainant has produced a printout from the Respondent`s website under <oreckairpurifier.com>. This is intriguing as the Respondent refers under "Sponsored Listings" to the Oreck Official Site Sale, and directs the viewer to "www.oreck.com" which is the Complainant`s website according to statements in the Complaint. At the same time, under "Sponsored Listings" the Respondent lists Dyson at Sears and Jcpenney Official Site as well as other locations and suppliers. Not only is the Respondent directing users to competitors of the Complainant as well as to the Complainant itself, but he is also admitting that he is aware of the Complainant company Oreck Corporation, ORECK vacuum bags and other products, and indeed the existence of the website "www.oreck.com".

This is sufficient evidence for this Panel to conclude that the Respondent is in bad faith when using the disputed domain name. It is not unreasonable to assume that the Respondent was in possession of knowledge of the Complainant, its ORECK trade marks and the cleaning business and products associated with those marks, when the domain name was first registered.

The Panel finds that the domain name <oreckairpurifier.com> was registered and is being used in bad faith, and the third element required for the Complainant to succeed has been established.

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, <oreckairpurifier.com>, be transferred to the Complainant.


Joan Clark
Sole Panelist

Dated: June 25, 2009


1 It is noted in this regard that the USPTO website indicates a record for the word mark ORECK, being U.S. Registration Number 1,454,954

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0506.html

 

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