WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
T. Rowe Price Associates Inc v. Momm Amed Ia
Case No. D2001-0930
1. The Parties
The Complainant is T. Rowe Price Associates Inc. ("the Complainant") a United States corporation with its headquarters in Baltimore, Maryland. According to the WHOIS database, the Respondent is Momm Amed Ia ("the Respondent") whose address is Kwangsan-gu Myongdo-dong 13-1, Kwangju, Korea 506-011. The administrative and technical contact is Solncev Michail whose address is Dimitrovs Str 22-12, Moscow, RU 102114 Russia.
2. The Domain Name and Registrar
The Domain Name, the subject of the complaint, is ("the domain name"). The Registrar/registry with which the domain name is registered is BulkR, Inc of Suite 1600, 10 E. Baltimore Street, MD 21202, United States of America ("the Registrar").
3. Procedural History
The World Intellectual Property Organization Arbitration and Mediation Center ("the Center") received a complaint from the Complainant by email on July 18, 2001, and in hard copy form on July 20, 2001 ("the Complaint"). On July 23, 2001, the Center forwarded an acknowledgement of receipt of the Complaint to the Complainant and to the email address of the Respondent as notified to the Registrar.
On July 25, 2001, the Center requested Registrar verification from BulkR, Inc. On August 1, 2001, the Registrar complied, confirming that a copy of the Complaint had been received on July 20, 2001, that the domain name is registered with the Registrar, that the Respondent is the registrant of the domain name and confirmed the administrative and technical contact details. The Registrar also confirmed that the Uniform Domain Name Dispute Resolution Policy ("the Policy") applies to the domain name. Telephone and email details were also confirmed for the administrative and technical contact and that the current status of the domain name is Registrar LOCK.
On August 3, 2001, the Center confirmed compliance with the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules") had been complied with. It is apparent that there was such compliance.
On August 3, 2001, the Center forwarded a Notification of Complaint and Commencement of Administrative Proceedings ("Notification") to the Respondent at the email address notified to the Registrar together with a copy of the Complaint without exhibits. Hard copies of the Notification and Complaint with exhibits were forwarded by courier to the Respondent and also to the administrative and technical contact at the addresses notified to the Registrar. No reply or response was received from the Respondent and, on August 28, 2001, the Center issued a Notification of Respondent Default by email and also by post. There was no answer or response from the Respondent. On September 5, 2001, after the Center received a completed and signed Statement of Acceptance and Declaration of Impartiality and Independence from Dr. Annabelle Bennett SC (the sole panelist), the Center notified the parties of the appointment of the administrative panel consisting of the sole panelist.
4. Factual Background
The following facts as asserted by the Complainant in the Complaint are not disputed.
The Complainant has a registered trademark T.ROWE PRICE which was registered on June 21, 1988 for use in mutual fund services. There are also some 29 other United States service marks, all including T.ROWE PRICE, chiefly in the area of mutual funds and associated software. All but one of the Complainant�s marks predate the Respondent�s registration of the domain name. The Complainant states that the service mark T.ROWE PRICE, which was registered on June 21, 1988 for use in connection with mutual fund investment services, is a famous mark. It was first used by the Complainant in 1937 and has been in continuous use since that time. The Complainant owns the domain name and owns a fully-operational website located at . The Complainant uses the service mark on its website and engages in extensive multi-media advertising of its services and uses the T.ROWE PRICE mark in this regard. The Complainant did not authorise the Respondent�s use of the domain name or a domain name that is likely to be confused with the Complainant�s mark.
The Complainant currently operates throughout the United States and has a world wide presence. As at March 13, 2001, the Complainant and its affiliates managed $US148.7 billion for more than eight million investors.
The Complainant states, again without rebuttal, that the Respondent operates an active website associated with the domain name and conducts a gambling business thereon.
5. The Complainant�s Assertions
The Complainant asserts that:
(i) the 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 domain name was registered and is being used in bad faith.
Identical or Confusingly Similar
The Complainant asserts that consumers would think that a site connected with the domain name is affiliated with the Complainant�s mark, T.ROWE PRICE and also the Complainant�s www. domain name and website. The Complainant also points to the clear similarity of the marks in their entirety as to appearance, sound, connotation and commercial impression; and to the differences between the domain name and the Complainant�s mark and own domain name being only in space and period.
The Complainant asserts that consumers are likely to believe that any domain name incorporating the T.ROWE PRICE name (or a close approximation thereof) is an associate of the Complainant such that the Respondent�s domain name is likely to confuse customers and cause them to believe mistakenly that the domain name is associated with the Complainant.
No Rights or Legitimate Interests
The Complainant states that, to the best of its knowledge, the Respondent has no rights to any trademark consisting of the terms "TROWEPRICE" or "WWWTROWEPRICE" in any country. It asserts that the Respondent is using the domain name for commercial gain and to mislead the Complainant�s consumers to what the Complainant refers to as a "gambling website".
The Domain Name was Registered and Being Used in Bad Faith
Without providing any factual basis for its assertion, the Complainant asserts that "on information and belief" the Respondent registered the domain name with knowledge of the Complainant�s rights apparently relying on some actual and/or constructive knowledge.
As further evidence of bad faith, the Complainant relies upon the incomplete addresses provided to the Registrar, to which mail was undeliverable; attempts to correspond with the Respondent resulted in the letters being returned to the Complainant due to incomplete address. The Complainant also relies upon an imputed purpose of diverting the Complainant�s customers to the Respondent�s gambling site and the creation of a strong likelihood of confusion in the market place.
The Complainant contends that each of the elements of paragraph 4(a) of the Policy is present. The Respondent has not answered or disputed any of the contentions.
6. Discussion and Findings
Identical or Confusingly Similar Domain Name (paragraph 4(a)(i) of the Policy)
The Panel notes the decided similarity between the Complainant�s registered marks and also its website which utilises the Complainant�s mark and agrees with the Complainant�s assertion that there is sufficient similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression, to give rise to confusion. Accordingly, the Panel finds that the domain name is virtually identical to and is confusingly similar to a trademark or service mark in which the Complainant has rights.
No Rights or Legitimate Interests in Respect of the Domain Name (paragraph 4(a)(ii) of the Policy)
The Respondent does not assert any right or legitimate interest in the domain name and there is no apparent right or legitimate interest by reason of the identity of the Respondent. The factual matters put forward by the Complainant are indicative of an absence of any right or legitimate interest in respect of the domain name; there is no evidence to suggest that any such right or interest exists. The Panel finds that the Respondent has not established any right or legitimate material in respect of the domain name with which there is no apparent legitimate association.
The Domain Name was Registered and is being Used in Bad Faith (paragraph 4(a)(iii))
Paragraph 4(b) of the Policy sets out four criteria that are evidence of registration and use of a domain name in bad faith, although the circumstances of bad faith are not limited to those criteria. The Complainant relies upon factual matters and has made assertions as to the fact that the domain name was registered and is being used in bad faith on the part of the Respondent. There has been no evidence or assertion to contradict these matters.
The Complainant�s mark was in long-established use well prior to the registration of the domain name. The mark itself is distinctive. It is also relevant that the Complainant�s activities are in the field of mutual fund services and there is no rebuttal of the assertion that the Respondent operates a gambling site using the domain name, which appears to be the case. The Panel finds that the evidence leads to the conclusion that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant�s mark in accordance with paragraph 4(b)(iv) of the Rules. The Panel finds the domain name has been registered and is being used in bad faith.
The Panel finds that the Complainant has proved each of the elements required to be proved under paragraph 4(a) of the Policy.
7. Decision
The Panel concludes:
(i) that the domain name registered by the Respondent is confusingly similar to a trade 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 domain name has been registered and is being used in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name be transferred to the Complainant.
Dr. Annabelle Bennett
Sole Panelist
Dated: September 27, 2001
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