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WIPO Arbitration and Mediation Center


AmerCable Incorporated v. Edward Van Rossum

Case No. D2009-1292

1. The Parties

The Complainant is AmerCable Incorporated of El Dorado, Arkansas, United States of America, represented by Haynes and Boone, LLP, United States of America.

The Respondent is Edward Van Rossum of Sunnyvale, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <amercablesinc.com> is registered with Melbourne IT Ltd.

3. Procedural History

The initial Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 30, 2009. The Complaint sought the transfer of the domain name <amercableinc.com>. The Complainant subsequent sought permission from the Center to file a First Amended Complaint adding the Respondent and seeking transfer of the disputed domain name <americablesinc.com>. The Center accepted the consolidation. The First Amended Complaint was filed on October 3, 2009. The Complainant then sought a suspension of the proceeding pending a voluntary transfer of the <amercableinc.com> domain name. The Complainant subsequently advised the Center that the <americableinc.com> domain name had been transferred and that the Complainant wished to proceed only against the Respondent to seek the transfer of the disputed domain name <amercablesinc.com>.

On October 5, 2009, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the disputed domain name. On October 6, 2009, Melbourne IT Ltd 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 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").

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the First Amended Complaint, and the proceedings commenced against the Respondent on October 7, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 31, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on November 3, 2009.

The Center appointed William F. Hamilton as the sole panelist in this matter on November 11, 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 the owner of the AMERCABLE mark which has been used in commerce by Complainant for nearly 30 years. The Complainant is a manufacturer of flexible electrical power and control cables for oil and gas drilling, surface and underground mining, renewable energy, and other industrial applications. The AMERCABLE mark was registered with the United States Patent and Trademark Office in April 29, 2008. The Complainant owns the domain name <amercable.com>.

The Respondent registered the disputed domain name <amercablesinc.com> on September 27, 2009.

5. Parties` Contentions

A. Complainant

The Complainant asserts that disputed domain name was registered and is being used as part of a scheme to defraud Complainant`s suppliers and customers. The Complainant`s suppliers have reported receiving illicit emails purporting to originate from the domain <amercablesinc.com>. These fraudulent emails solicited commercial transactions while providing an address in California, United States where the defrauded supplier was to make payments to the imposter. The Complainant contends the registration of the disputed domain name, which closely resembles the Complainant`s registered mark, is part of this fraudulent scheme. The disputed domain name resolves to a copycat website which closely resembles the look and feel of the Complainant`s website and appears to have actual text and other material copied from Complainant`s "www.amercable.com" website. The Complainant asserts the disputed domain name was registered and is being used to aid and abet a fraud on the Complainant and the Complainant`s suppliers and customers.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy establishes three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:

(i) The Respondent`s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights: and

(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) The Respondent`s domain name has been registered and is being used in bad faith.

Each of the aforesaid three elements must be proved by a complainant to warrant relief.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the Complainant`s registered mark. The mere addition of a pluralizing "s" and an abbreviation "inc" to Complainant`s registered trademark is insufficient to avoid a finding of confusing similarity. UDRP panels uniformly hold that such minor additions do not dispel confusion and frequently increase confusing similarity. Graybar Services, Inc. v. Lawrence Giglio, Grssbar Electric Inc., WIPO Case No. D2009-0993 (<graybarinc.com>): Pfizer Inc. v. Asia Ventures, Inc., WIPO Case No. D2005-0256 (<pfizerinc.com>). The Complainant has met its burden under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has affirmatively asserted that the Complainant has never consented to, licensed, or authorized the Respondent to use the disputed domain name. Moreover there appears to be no bona fide commercial use by the Respondent of the disputed domain name. Indeed, the Complainant has asserted and provided evidence in the annexes to the First Amended Complaint that the disputed domain name appears to be part of an elaborate fraud designed to victimize the Complainant and the Complainant`s suppliers and customers by luring the Complainant`s suppliers and customer into bogus transactions. Such use is the antithesis of a bona fide commercial endeavor. United Parcel Service of America, Inc. v. Shipping Administration, WIPO Case No. D2002-1162 (<upsovernight.com> and <upspackages.com>). The Respondent has remained mute in the face of Complainant`s allegations. The Panel finds the Complainant has made a prima facie case of lack of the Respondent`s rights or legitimate interests in the disputed domain name and that the Respondent has failed to respond. According the Panel concludes that Respondent has no rights or legitimate interests in the disputed domain name. The British Council v. Li Yen Chun, WIPO Case No. D2001-0997 (<britishcounsel.com>). The Complainant has met its burden under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Complainant has established on the record before the Panel that the disputed domain name was registered and is being used in bad faith as part of an elaborate fraudulent scheme. Busy Body, Inc. v. Fitness Outlet, Inc., WIPO Case No. D2000-0127 (efitnesswarehouse.com). The Complainant has met its burden under 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 <amercablesinc.com> be transferred to the Complainant.

William F. Hamilton
Sole Panelist

Dated: November 25, 2009


Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-1292.html


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