WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deutsche Telekom AG v. Gary Seto
Case No. D2006-0690
1. The Parties
The Complainant is Deutsche Telekom AG, Bonn, Germany represented by Lovells, Germany.
The Respondent is Gary Seto, Chicago, Illinois United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Primus Telecommunications Pty Ltd. trading as PlanetDomain and PrimusDomain
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 2, 2006. On June 2, 2006, the Center transmitted by email to Primus Telecommunications Pty Ltd. a request for registrar verification in connection with the domain name at issue. On June 5, 2006, Primus Telecommunications Pty Ltd. transmitted by email to the Center their 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 June 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June�29,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2006.
The Center appointed Arne Ringnes as the sole panelist in this matter on August�16,�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
The Complainant is Europe’s largest telecommunications company. The Complainant has established presence in the major economic centers of the world, serving customers in more than 65 countries around the globe through regional units.
The trademark upon which the Complaint is based is the US-trademark DEUTSCHE TELEKOM (registration no. 2443607) with a priority date of July 1996. In addition, the Complainant is holder of the European Community trademark DEUTSCHE TELEKOM (registration no. 214643) with a priority date of April 1, 1996, of the international trademark DEUTSCHE TELEKOM, registered under the Madrid System for the International Registration of Marks with registration No. 661455 and a priority date of February 20, 1996, and of the German trademark DEUTSCHE TELEKOM (application and registration no. 39607816) with a priority date of February 20, 1996.
Further, the Complainant is the registered owner of the domain names , , , , and .
5. Parties’ Contentions
A. Complainant
The Complainant submits that the disputed domain name is confusingly similar to the Complainant’s trademark DEUTSCHE TELEKOM because the wording is nearly identical. Just the two letters “t” and “s” in the word “deutsch” are inter-changed.
Further, the Complainant submits that the Respondent does not show any legitimate interest in the use of the disputed domain name. The Respondent does not offer and never has offered any goods or services. Looking at the disputed Internet site the user just finds several sponsored links and a hint that the domain name is offered for sale. Previous decisions under the Policy summons that a domain name which is just used for a web page containing sponsored links does not constitute a legitimate interest (L’Or�al, Biotherm, Lanc�me Parfums et Beaut� & Cie v. Unasi, Inc., WIPO Case No. D2005-0623).
According to the Complainant, the disputed domain name has been registered and is used in bad faith for the following reasons:
(i) When registering the domain name the Respondent had knowledge of the Complainant’s trademarks and business names. This is evident given the worldwide fame of the Complainant’s trademarks. This suspicion is confirmed as of the domain name is offered for sale in Germany.
(ii) Apart from this, neither a “cease and desist” letter nor an e-mail reached the Respondent. Evidently the Respondent has provided false contact details. Pursuant to a long range of previous decisions under the Policy, this is also to be regarded as an indication of a registration and use in bad faith (Southern California Edison Company v. John Simms, WIPO Case No. D2002-0369).
(iii) Moreover, the inserting of several sponsored links for businesses in the same field as that of the Complainant, demonstrates that the Respondent aims to use the confusion of the disputed domain name with the registered trademark of the Complainant as a hook for customers who, once on his site, will be lured into visiting the sponsored links.
(iv) Finally, the domain name is offered for sale, which indicates the profit-seeking motives of the Respondent.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark DEUTSCHE TELEKOM.
The disputed domain name incorporates the Complainant’s trademark except that the letters “t” and “s” are interchanged. The Panel finds that the interchanging of the two letters is not different from omitting a letter, see for example the panel’s conclusion in Deutsche Telekom AG v. D, WIPO Case No. D2002-0164. The Panel remarks that it does not seem unlikely that Internet users who are in a hurry will type DEUSTCHETELEKOM instead of DEUTSCHETELEKOM.
On the background of this, and in conclusion, the Panel finds that the Complainant has proved the condition under the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Respondent has not contested the Complainant’s allegation that the Respondent lacks rights or legitimate interests in the disputed domain name.
It is generally difficult for the Complainant to prove that the Respondent does not have any rights or legitimate interests in the domain name at issue. On the other hand, it would be fairly simple for the Respondent to demonstrate that it has such rights or legitimate interests pursuant to paragraph 4(c) of the Policy. Previous decisions under the Policy have therefore found it sufficient for a complainant to make a prima facie showing of its assertion in the event of a respondent’s default.
The basis for the Panel’s decision is that the Complainant has not granted the Respondent any rights to use its mark, and that it is in no way affiliated with the Respondent. The Panel finds that the circumstances mentioned and evidenced by the Complainant, i.e. that the Respondent does not offer any goods or services – instead the disputed domain name contains several sponsored links, are sufficient to establish a prima facie showing that the Respondent has no rights or legitimate interests in the domain name at issue.
As the Panel cannot find any indications of the three circumstances that constitute rights to or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy or any other circumstances indicating such rights or legitimate interests in the case file, the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue.
C. Registered and Used in Bad Faith
The Panel has considered the Complainant’s assertions and evidence with regard to the Respondent’s registration and use of the domain name in bad faith. By not submitting a Response, the Respondent has failed to invoke any circumstances that could demonstrate that the Respondent did not register and use the domain name at issue in bad faith.
According to paragraph 4(b) of the Policy, certain circumstances shall be evidence of the registration and use of a domain name in bad faith. These include in sub-paragraph (iv) the fact that the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to his 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 his website or location or of a product or service on his website or location.
The Respondent is using the Complainant’s mark DEUTSCHE TELEKOM to attract Internet users to its website without making it clear that it is not a website of the Complainant or affiliated with or sponsored or endorsed by it. In particular, the Panel sees the sponsored links for businesses in the same field as that of the Complainant as an indication of bad faith. Even if the users who access the Respondent’s website may conclude that it is not what they were originally looking for, the Respondent has already succeeded in its purpose of using the Complainant’s mark to attract users for commercial gain, see for example the panel’s observations in Red Bull GmbH v. Unasi Management Inc., WIPO Case No. D2005-0304.
For the various reasons discussed above, the Panel finds that the Respondent has registered and used the domain name in dispute in bad faith.
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 the Complainant.
Arne Ringnes
Sole Panelist
Dated: September 7, 2006
Full & Egal Universal Law Academy