WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SenSym, Inc. v. Denis Jalbert
Case No. D2002-1042
1. The Parties
The Complainant is SenSym, Inc., C/O David A. Cohen, Esq., Honeywell International Inc., of Morristown, NJ, United States of America, represented by Baker & McKenzie of United States of America.
The Respondent is Denis Jalbert of Quebec, Canada.
2. The Domain Name and Registrar
The disputed domain name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 11, 2002. On November 13, 2002, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On November 15, 2002, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 5, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was December 25, 2002. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on December 27, 2002.
The Center appointed Masato Dogauchi as the sole panelist in this matter on January 29, 2003. 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.
The language of the proceeding is English.
The Panel is satisfied that the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules; payment was properly made; the Panel agrees with the Center�s assessment concerning the Complaints� compliance with the formal requirements of the Rules; the Complaint was properly notified to the Respondent in accordance with Paragraph 2(a) of the Rules; no Response was filed within the time specified by the Rules and the single-member Administrative Panel was properly constituted.
4. Factual Background
It is established from the evidence submitted by the Complainant (Exhibit 4) that the Complainant owns U.S. trademark Registration No. 1,262,885 for the SENSYM mark. The registration issued on January 3, 1984.
The Respondent registered the disputed domain name on August 15, 2002.
5. Parties� Contentions
A. Complainant
The following factual and legal contentions made by the Complainant.
Since 1974, the Complainant and its predecessors have been designing, manufacturing, and packaging a wide array of pressure silicon sensors, including basic sensors, temperature compensated sensors, transducers, force gauge compression, and evaluation boards.
Prior to August 15, 2002, the Complainant owned the domain name. This domain name was linked to the company's website, which informed the public, the Complainant�s customers and its potential customers about its products. When the Complainant inadvertently allowed the registration to lapse by not immediate renewing its registration on the date of its expiration, the Respondent registered the domain name that is the disputed domain name, and linked it to a pornographic website.
In accordance with Paragraph 4(a) of the Policy, the Complainant asserts in essence as follows:
(1) The disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights;
(2) The Respondent has no rights or legitimate interests in respect of the dispute domain name;
(3) The disputed domain name was registered in bad faith.
The first requirement should be considered to be satisfied, since the main part of the disputed domain name is identical to the trademark in which the Complainant has rights.
The second requirement should be considered to be satisfied, since the Respondent is not in anyway related to, associated, or in business with the Complainant, and the Complainant has not granted the Respondent any rights to use the Complainant�s trademark or trade name.
The third requirement should be considered to be satisfied, since first, the Respondent is using the disputed domain name to direct people looking for the Complainant�s trademark to a pornographic website; second, the Respondent is profiting as a result of the pornographic subscriptions it sells and the ads it places on its site; third, the Respondent has a sordid history of registering third parties' trademarks as domain names and linking such domain names to pornographic websites, thereby preventing companies like the Complainant from using their trademarks and trade names as their domain names.
In accordance with Paragraph 4(i) of the Policy and for the reasons described in Section V above, the Complainant requests a decision that the domain name be transferred to the Complainant. In the alternative, the Complainant requests that the disputed domain name be cancelled.
B. Respondent
The Respondent did not reply to the Complainant�s contentions.
6. Discussion and Findings
In accordance with Paragraph 15(a) of the Rules, a Panel shall decide a Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Since the Respondent has not made any submission in this case, the following decision is rendered on a basis of the submission from the Complainant.
In accordance with Paragraph 4(a) of the Policy, for the Complaint to be granted, the Complainants must prove each of the following:
(1) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(2) The Respondent has no rights or legitimate interests in respect of the dispute domain name;
(3) The disputed domain name has been registered in bad faith and is being used in bad faith.
A. Identical or Confusingly Similar
The panel has found that the Complainant owns U.S. trademark Registration No. 1,262,885 for the SENSYM mark, the registration of which was issued on January 3, 1984.
It is apparent that the main part of the disputed domain name, "SENSYM", is identical to the trademark in which the Complainant has rights.
The requirement (1) above is accordingly satisfied.
B. Rights or Legitimate Interests
There is no evidence indicating in some way that the Respondent is related to, associated, or in business with the Complainant, and that the Complainant has granted the Respondent rights to use the Complainant�s trademark or trade name. On the contrary, according to the Exhibit 5 (Affidavits of G. Roos, D. Cohen), it is found that the Respondent is not in anyway related to, associated, or in business with the Complainant, and the Complainant has not granted the Respondent any rights to use the Complainant�s trademark or trade name.
The Panel cannot find any other evidences indicating that the Respondent has any rights or legitimate interests in respect of the dispute domain name.
The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the dispute domain name. The requirement (2) above is accordingly satisfied.
C. Registered and Used in Bad Faith
It can be found that the respondent connected the disputed domain name to a pornographic website (Exhibit 6). Connecting a domain name to a pornographic site by itself has been held to be one of the evidences of bad faith, since such use is listed as one of the conduct patters of indicating bad faith in Paragraph 4(b)(iv) of the Policy: "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant�s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location." See, Paragon Electric Co., Inc. v. Buy This Domain d/b/a/ NameRegister.Com, WIPO Case No. D2001-1439 (February 20, 2002); Barry Diller v. INTERNETCO CORP., WIPO Case No. D2000-1734, (March 9, 2001); World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, WIPO Case No. D2000-0256 (June 7, 2000).
The Panel therefore finds that the disputed domain name has been registered in bad faith and is being used in bad faith, without mentioning other possible reasons to reach the same conclusion. The requirement (3) above is accordingly satisfied.
Accordingly, all three cumulative requirements as provided for in Paragraph 4(a) of the Policy are determined to be satisfied.
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 disputed domain name be transferred to the Complainant.
Masato Dogauchi
Sole Panelist
Date: January 31, 2003
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