ADMINISTRATIVE PANEL DECISION Deutsche Telekom AG v. DotaCom Corporation Case No. D2006-1221 1. The Parties The Complainant is Deutsche Telekom AG, Bonn, Germany, represented by Lovells, Germany. The Respondent is DotaCom Corporation, LaGrange, Illinois, United States of America. 2. The Domain Name and Registrar The disputed domain name is , which is registered with Go Daddy Software. 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September�21,�2006. On September�25,�2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On September�25,�2006, Go Daddy Software 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 October�2,�2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October�22,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October�23,�2006. The Center appointed Joseph Dalby as the sole panelist in this matter on October�31,�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 disputed domain name was originally registered in or before September�2005 to a third party, not joined in these proceedings. In March�2006, it was purportedly transferred but in any event registered to the Respondent. The Respondent is purportedly a corporation but no information has been provided to the Panel. The Complainant is a telecommunications company incorporated in Germany and with an established presence in 65 countries. “T-Mobile” is the name of under which its subsidiary (T-Mobile International AG & Co KG, also incorporated in Germany) markets and supplies wireless voice telephone and data services. The marks T-MOBILE and TMOBILE have been registered as domains in the “.com”, “.net” and “.info” TLDs. 5. Parties’ Contentions A. Complainant The Complainant firstly contends that the domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights. In evidence, the Complainant refers to the fact that its trading name T-MOBILE has been registered by the Complainant as International Trademark (Number 2282432) for various classes of goods and services, as US Trademark (No. 2284387) and as a Community Trademark (EM04588241). Evidence of registration of both domain names and trademarks has been produced by the Complainant. The Complainant avers that the disputed domain name is confusingly similar to its trademark, and to its websites, since it substantially incorporates its trademark. It adds that even though the disputed domain name also incorporates a common or generic term this cannot distinguish or detract from the confusing similarity between the two; several previous Panel decisions are offered in support (e.g. Nokia Corporation v. Horoshiy, Inc v. LaPorte Holdings, WIPO Case NoD2004-0851). Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. It states in evidence that the Respondent is not and never has been a representative or licensee of the Complainant; nor is the Respondent otherwise authorized to use the Complainant’s mark. Further it avers that the domain name does not appear to be used for any bona fide offering of goods or services. Finally, it believes that the Respondent was not known by the name “T-mobile” prior to the registration of the domain name. Thirdly, and finally, the Complainant contends that the disputed domain name has been registered, and is being used, in bad faith. It avers that the Respondent had knowledge of the Complainant’s trademark and business names – on account of latter’s worldwide reputation. In evidence the Complainant has adduced copies of printed screen shots that indicate that the disputed domain name has been used to host a website containing hypertext links concerned with, inter alia, telecommunication goods and services. Finally the Complainant points out that the printed screen shots indicate that the website is offered for sale, which it adds is evidence of bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. In particular, it has not submitted evidence of any the scenarios in paragraph�4(b) of the Policy. 6. Discussion and Findings The Domain Name Registration Agreement, between Registrar and Registrant (the Respondent), refers to but does not (in the Panel’s view) clearly and expressly incorporate the UDRP. Instead it incorporate the Registrar’s “current Dispute Resolution Policy” (clause 4) but this is not produced. However, the Registrar confirms by its email of September�25,�2006 that the UDRP applies to the disputed domain name, which claim is not rebutted by the Respondent. Accordingly, the Panel finds that the domain names in question are governed by the Policy. The Respondent has been given an adequate opportunity to deal with the allegations against it and it is thus noted that the Respondent has not offered any contentions in rebuttal of the claims and contentions made by the Complainant. In this matter the Panel finds as follows: A. Identical or Confusingly Similar The Complainant has proven that it has rights to an established and valid trademark. Other than the addition of a generic or common term, the disputed domain name is identical to the trademarks relied upon. The additional term does not materially alter the character and substance of the disputed domain name such as to distinguish it from the trademark or to render it any less identical or confusingly similar. Accordingly, the Panel finds that the domain name in question is identical or confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests Taking the Complaint in its entirety, the Complainant has satisfactorily demonstrated a prima facie case that the Respondent has no rights to or legitimate interests in the domain names. In default of the Respondent adducing any evidence to rebut this contention, the Complainant has adequately proved this element. C. Registered and Used in Bad Faith It is not possible to determine to what extent the Respondent had prior knowledge of the reputation and notoriety of a Complainant’s trademark or its business. Some knowledge might be deemed. However, the fact that the Respondent has failed to adduce any evidence of rights or legitimate interests arising from commercial activities pursued prior to registration of the disputed domain names is suggestive of bad faith in the registration of the disputed domain name. This, coupled with the evidence presented of use in bad faith, persuades the Panel in this case that it was duly registered in bad faith. With regard to use in bad faith, the printed screen shots indicate that there was by the Respondent a deliberate intent to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. Further the Complainant establishes a prima facie case that the intention was for commercial gain, which again the Respondent has not attempted to rebut. Whether this was from the sale of sponsored links (likely) or from the sale of the website (as opposed to the domain itself) is not in issue, as both further support the contention of bad faith. Accordingly, the Panel finds that the disputed domain name was registered and used 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. Joseph Dalby Sole Panelist Dated: November 14, 2006
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