WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Olympus America Inc. v. Olympus Computer Marketing, Inc. and Maria Lawrence, d/b/a Olympus Financial Services
Case No. D2002-0308
1. The Parties
The Complainant is Olympus America Inc. ("Olympus America"), a New York corporation having a place of business at Two Corporate Center Drive, Melville, New York 11747-3157, United States of America. Olympus Optical Co., Ltd. ("Olympus Optical") is a Japanese joint stock company having a place of business at 2-3 Kuboyama-cho, Hachioji-shi, Tokyo 192, Japan. Olympus USA Incorporated ("Olympus USA") is a wholly owned subsidiary of Olympus Optical and in turn, Olympus America is a wholly owned subsidiary of Olympus USA..
The Respondents are Olympus Computer Marketing, Inc. and Maria Lawrence, d/b/a Olympus Financial Services. The Registrant of the domain name is Olympus Financial Services, PO Box 1131, Danville, CA 94526 United States of America. The Complaint alleges, though, that there is no corporation or other business entity licensed to do business in California under the name Olympus Financial Services. However, Olympus Computer Marketing, Inc. is incorporated in California, and its address is the same as the above address listed for the Registrant. Likewise, Maria Lawrence of 138 Virginia, Danville, California 94526, United States of America is listed as the agent for service of process on Olympus Computer Marketing and Maria Lawrence is listed as the Administrative, Technical and Billing contacts for the OlympusFinancialS domain name.
2. The Domain Name and Registrar
The disputed domain name is , which was registered on January 25, 2001. The Registrar is TUCOWS Inc., 96 Mowat Avenue, Toronto, Ontario, M6K 3M1 Canada.
3. Procedural History
The Complaint was filed electronically on March 30, 2002, and the hardcopy and verification was received on April 5, 2002. On April 11, 2002, the WIPO Arbitration and Mediation Center ("the Center") completed the formal requirements compliance checklist, and issued a Notification of Complaint and Commencement of Administrative Proceeding. This Panel concurs that the Complaint meets the formal requirements, and that Respondent was properly notified of the Complaint. However, Respondents did not file a Response. On May 8, 2002, the Center issued a Notification of Respondent Default.
On May 9, 2002, Respondent Maria Lawrence emailed the Center, and indicated she did not receive the hard copy of the Complaint, and that she had not defaulted. Lawrence and the Center communicated multiple times between May 9-17, 2002, the gist being that Lawrence received the April 11, 2002, electronic notification of the proceedings, but did not receive a hard copy because Federal Express cannot deliver to a post office box, which is the only address listed for Respondent. The Respondent did, however, receive the Complaint with the annexes as part of the email Notification of Complaint and Commencement of Administrative Proceeding. The Center informed Lawrence that she could send a request to submit a response. On May 20, 2002, Lawrence sent an email "request that this matter is initiated again from the beginning." On June 4, 2002, Lawrence sent a "partial response to the case" by email. The Complainant opposes Lawrence�s request to initiate this matter again or to submit a late Response for consideration by the Panel.
This Panelist was asked to serve and submitted a Statement of Acceptance and Declaration of Impartiality and Independence. On June 17, 2002, the Center issued its Notification of Appointment of Administrative Panel and Projected Decision Date, that this Panelist was appointed, and projected the date for decision as July 1, 2002. The language of this proceeding is English.
4. Respondents Are In Default
Proceedings under the Uniform Domain Name Dispute Resolution Policy ("UDRP") generally are conducted solely on paper; the parties do not appear before the Panelist(s). Consequently, Panelists do not have the ability to assess the demeanor of the parties, or to question the parties, in an effort to determine the parties� credibility. In the vast majority of UDRP proceedings, the Panelists therefore must rely solely upon the verified, sworn statements of the parties, and the evidence submitted, to make factual determinations. This Panelist believes that it therefore is essential that the parties comply with Rule 3(xiv) and 5(viii), which require the parties to sign a certification that the information contained in the pleadings is accurate. Despite the passage of six weeks since the Notification of Default, Respondents have submitted only a brief email "partial response." Since Respondents have not complied with Rule 5(viii), Respondents are deemed to be in default.
5. Factual Background
Olympus America first began to use OLYMPUS as a brand name in the United States through its parent company Olympus Optical Co., Ltd. and its predecessors in interest at least as early as 1947, and registered the mark for use in connection with cameras in 1957. Olympus America, through its ultimate parent, Olympus Optical Co., Ltd., owns thirty-eight (38) additional U.S. registrations and applications for OLYMPUS marks.
Olympus America sells numerous products and assists its customers with financing needs through its Olympus Financial Services division. This internal division operates and provides its services under the OLYMPUS FINANCIAL SERVICES mark. Olympus America first began doing business under the OLYMPUS FINANCIAL SERVICES mark at least as early as July 29, 1996. Olympus America has registered and owns a registration for the trademark OLYMPUS FINANCIAL SERVICES, U.S. Reg. No. 2,199,264. This registration was filed on October 8, 1996, and was granted on October 27, 1998, for use in International Classes 36 and 42. Olympus America has participated in millions of dollars of financing transactions under the OLYMPUS FINANCIAL SERVICES mark.
The disputed domain name, , was registered on January 25, 2001. The domain resolves to an active website, which states that Olympus Financial Services provides financing for equipment acquisitions.
6. Parties� Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to its OLYMPUS FINANCIAL SERVICES registered mark. Complainant also contends that Respondents have no rights in the disputed domain name, and are not licensees of Complainant or its affiliates. Respondents also allegedly have registered and are using the disputed domain name in bad faith to attract Internet users for commercial gain, and to prevent Complainant from using the domain name that corresponds to its OLYMPUS FINANCIAL SERVICES registered mark.
7. Discussion and Findings
Under Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Complainant has the burden of proving each of the following: (1) that the domain name is identical or confusingly similar to the complainant�s mark; (2) that the Respondent has no rights or legitimate interests in the domain name; and (3) that the Respondent registered and is using the domain name in bad faith. The Complainant must meet these requirements despite Respondents� default.
A. The disputed domain name is identical or confusingly similar to the Complainant�s registered mark
The evidence shows that the Complainant clearly has rights in a family of registered marks incorporating OLYMPUS. Additionally, Complainant has a registered mark for OLYMPUS FINANCIAL SERVICES.
The disputed domain name, , incorporates both Complainant�s OLYMPUS and OLYMPUS FINANCIAL SERVICES registered marks in their entirety.
I find that the disputed domain name is identical or confusingly similar to Complainant�s registered marks.
B. Respondents do not have any rights or legitimate interests in the domain name
Complainant states that Respondents are not licensees, nor are they otherwise authorized to use Complainant�s OLYMPUS and OLYMPUS FINANCIAL SERVICES registered marks.
Despite using the name Olympus Financial Services as the Registrant for the disputed domain name, Respondents are not registered to do business in California as Olympus Financial Services.
Respondents have not submitted any evidence of a legitimate interest in the disputed domain name. Pursuant to Rule 14(b), I draw an adverse inference that Respondents do not have any evidence.
Accordingly, I find that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Respondent has registered and has used the domain name in bad faith
Under 15 USC �1072, registration of the OLYMPUS and OLYMPUS FINANCIAL SERVICES marks constitutes constructive notice of the marks. Respondents therefore had legal, if not actual, notice of Complainant�s marks prior to registering the disputed domain name. I find that the mark was registered in bad faith.
Paragraph 4(b) of the Policy states a non-exclusive list of factors that constitute evidence of bad faith use. In particular, �4(b)(iv) includes use of the domain name intentionally to attract users for commercial gain by creating a likelihood of confusion with the Complainant�s mark as to source, sponsorship, affiliation, or endorsement of Respondent�s website, product or service. This paragraph is directly applicable in this situation.
As set forth above, the disputed domain name, , resolves to an active website, which states that Olympus Financial Services provides financing for equipment acquisitions. Anyone who visits the disputed domain looking for Complainant�s OLYMPUS FINANCIAL SERVICES® financial services might easily be confused into thinking that there is an association between Complainant and Respondents, which would benefit Respondents.
I find that the disputed domain name has been registered and used in bad faith.
8. Decision
Pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules for Uniform Domain Name Dispute Resolution Policy, I find that Complainant has satisfied all of the required elements. I hereby grant Complainant�s request for a transfer of the domain name to the Complainant. Registrar TUCOWS Inc. is directed to transfer the domain name.
Sandra A. Sellers
Sole Panelist
Dated: June 28, 2002
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