WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
cPanel, Inc. v. Martin Steve
Case No. D2006-0241
1. The Parties
The Complainant is cPanel, Inc., United States of America, represented by Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, Los Angeles, California, United States of America.
The Respondent is Martin Steve, Brentford, Middlesex, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name is registered with Spot Domain LLC dba D.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 25, 2006. On February 28, 2006, the Center transmitted by email to Spot Domain LLC dba D a request for registrar verification in connection with the domain name at issue. On March 1, 2006, Spot Domain LLC dba D 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 March 13, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April�2,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 7, 2006.
The Center appointed Eduardo Machado as the sole panelist in this matter on April�18,�2006. 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
Complainant cPanel, Inc. manufactures computer software for facilitating the management and configuration of Internet web servers. According to Complainant, around 10 percent of the world’s web pages are hosted on web servers loaded with cPanel’s software.
Complainant is the owner of all right, title and interest in the CPANEL trademark. The trademark is registered on the Principal Register of the United States Patent and Trademark Office as USPTO Registration No. 3058679. The USPTO registered the trademark on February 14, 2006. Complainant has trademark rights in the United Kingdom by virtue of its extensive use of the trademark in that jurisdiction. Complainant has issued more than 1,000 licenses for its software in the United Kingdom specifically and more than 3,000 software licenses in the European Union. Additionally, Complainant filed an application for European Community trademark registration of the trademark CPANEL on February 15, 2006. The trademark CPANEL is protected by applicable state and federal law due to Complainant’s extensive use of the trademark CPANEL since 1998, and due to the trademark’s acquired distinctiveness during that time.
Respondent registered the domain name on April 30, 2005, and has been using the domain name since then.
According to the “www.” website, Respondent provides services and software for hosting control panels and maintaining server services.
On August 4, 2005, Complainant sent a cease and desist letter to every known postal and e-mail address of Respondent. In the e-mail and letter, Complainant demanded that Respondent cease and desist from infringing upon the trademark CPANEL and transfer the domain name to Complainant.
Complainant filed the Complaint on February 25, 2006.
Respondent is in default in these proceedings and was notified of its default by the Center on April 7, 2006.
5. Parties’ Contentions
A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant’s mark in that it incorporates the mark in its entirety. Complainant further contends that its mark is well known among users of web hosting services and among web hosting companies and that this notoriety increases the likelihood of confusion.
Complainant contends that Respondent has no rights or legitimate interests in the domain name ; and, Respondent has registered and is using the disputed domain name in bad faith. Complainant contends that excluding the added word “apache”, the domain name is identical to Complainant’s trademark and including the added word, the domain name is confusingly similar to Complainant’s CPANEL trademark.
B. Respondent
Respondent did not reply to Complainant’s contentions and has not otherwise actively participated in these proceedings.
6. Discussion and Findings
Even though Respondent did not reply, it is proper for the Panel to examine Complainant’s contentions having regard to both the Policy and the Rules.
A. Identical or Confusingly Similar
Complainant is correct that the domain name is confusingly similar to Complainant’s trademark CPANEL, which is a registered mark in the United States of America.
The addition of the term “apache” is not sufficient to avoid a likelihood of confusion. Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505 “the incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to the complainant’s registered mark.” In this case, the trademark CPANEL is the most prominent element in this combination, and that may mislead the public to believe that the domain name is somehow connected with the owner of the CPANEL trademark.
The Panel finds to be confusingly similar to CPANEL despite the addition by Respondent of the word ‘apache’ to Complainant’s CPANEL mark.
B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the domain name at issue as enumerated in paragraph 4(c) of the Policy. Complainant has made out a prima facie case that Respondent lacks rights and legitimate interests in the domain name. Respondent, by failing to file a Response, did nothing to dispute this contention nor to provide information as to its interests in using the disputed domain name. The fact that the domain name resolves to a commercial website, through which Respondent provides services and software for hosting control panels and maintaining server services, also leaves the Panel with the conclusion that Respondent has no rights or legitimate interests in the disputed domain name.
Therefore, the Panel finds that the second element of the Policy has been established.
B. Registered and Used in Bad Faith
The Panel notes the following particular circumstances of this case:
(i) Complainant’s trademark has been continuously used since 1998.
(ii) Complainant’s trademark is registered on the Principal Register of the United States Patent and Trademark Office as USPTO Registration No. 3058679.
(iii) Complainant issued more than 1,000 licenses for its software in the United Kingdom – Respondent’s domicile – and more than 3,000 software licenses in the European Union.
(iv) Respondent did not answer the cease and desist letter sent by Complainant.
(v) Respondent must have been aware of Complainant’s mark, which identifies computer software for facilitating the management and configuration of Internet web servers.
(vi) Respondent provided no evidence whatsoever of any good faith use by it of the disputed domain name, and has not participated in this proceeding even though properly notified thereof;
(vii) the disputed domain name resolves to a commercial website, through which Respondent provides services and software for hosting control panels and maintaining server services.
In light of these circumstances, the Panel makes the reasonable inference that Respondent was aware of Complainant and its trademark and that Respondent registered the disputed domain name within the meaning of paragraph�4(b)(iv) of the Policy.
The third element of the Policy has been met.
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 be transferred to Complainant.
Eduardo Machado
Sole Panelist
Dated: May 2, 2006
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