WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ADT Services AG v. Ivan Valencia
Case No. D2007-1213
1. The Parties
Complainant is ADT Services AG, Schaffhausen, Switzerland, represented by Christopher & Weisberg, P.A., United States of America.
Respondent is Ivan Valencia, Euclid, Ohio, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Wild West Domains, Inc.
3. Procedural History
Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 16, 2007. On August 17, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On August 18, 2007, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on August 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 17, 2007.
The Center appointed Zentaro Kitagawa as the sole panelist in this matter on September 25, 2007. 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
This dispute concerns the domain name .
Complainant ADT Services A.G. owns the trademarks ADT Reg. Nos. 0710708,1034716, 0710507, ADT ALWAYS THERE Reg. No. 2586569, ADT ADDRESS ALERT and Design Reg. No.2789471, ADT MONOGRAM Reg. No. 0846966 that have since January 31, 1961 been registered with the United States Patent and Trademark Office, and owns also trademarks for the ADT name in other countries. Complainant licenses other companies to use these trademarks in their respective territories. The ADT groups sell and offer for sale home security products and services throughout the world under these trademarks. Complainant itself or through its licensees maintains many ADT-based domains, including , and .
Respondent registered the disputed domain name on December 15, 2002. Currently, the “www.” displays no particular website items which are related to the offering of home security products or services to consumers.
5. Parties’ Contentions
A. Complainant
Complainant’s assertions are as follows:
1. Respondent’s domain name is identical and confusingly similar to Complainant’s ADT trademarks.
2. Respondent does not have any rights or legitimate interests in the domain name .
3. Respondent registered and used the domain name in bad faith.
B. Respondent
Respondent did not submit any response nor reply to Complainant’s contentions.
6. Discussion and Findings
The Rules provide: “If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint.” Rules, paragraph 5(e). Respondent did not reply in this case and there are no exceptional circumstances presented. In case of default, plausible facts asserted by complainant may be taken as true and reasonable inferences drawn by the panel, in accordance with Paragraph 14(b) of the Rules.
A. Identical or Confusingly Similar
Complainant owns trademark rights in ADT and ADT-related marks. Furthermore, Complainant itself or through its licensees maintains many ADT-based domains, including , and . The domain name in dispute is not identical to any of Complainant’s marks. However the domain name in dispute is confusingly similar to a number of Complainant’s trademarks in that it contains Complainant’s ADT mark with the addition of the term “homesecurity”, which also describes the kind of products or services offered by Complainant connected with its ADT marks, as well as with its ADT-based domain names. The addition of the generic term “homesecurity” by Respondent to Complainant’s ADT mark is not sufficient to distinguish the domain name from Complainant’s mark.
It is clear to the Panel that the domain name in dispute is confusingly similar to Complainant’s marks.
B. No Rights or Legitimate Interests
Complainant indicates that it has never granted Respondent an express or implied license to use its trademarks. Respondent’s website gives no information regarding Respondent’s possible rights or legitimate interests in the domain name. Rather, it appears to the Panel that it registered the domain name on December 2, 2002 for the purpose of illegally using the domain name to sell products and services like ADT’s, but not originating from ADT. Before Respondent was given notice of this dispute, Respondent’s website at the domain name used ADT’s trademarks in connection with offering apparently competing goods or services. This establishes unauthorized uses of Complainant’s trademarks. Respondent has not been commonly known by the domain name in dispute. Furthermore, Respondent is not making a legitimate non-commercial or fair use of the domain name without intent for commercial gain by misleadingly diverting consumers and tarnishing ADT’s trademarks. Complainant’s contentions are shown in the attachments. Respondent’s current website at the domain name was apparently changed after the Complaint was filed on August 16, 2007 and now contains no such items. However, this does not exclude Respondent’s illegal or illegitimate use of Complainant’s trademarks hereafter.
For these reasons, Respondent has no rights or legitimate interests to the domain name .
C. Registered and Used in Bad Faith
Complainant contends that Respondent intentionally seeks to obtain commercial gain by use of ADT’s trademarks and that its website includes specific references to ADT, improper uses of ADT’s trademarks, and specific competitive language. Respondent is necessarily aware of ADT’s trademarks, since the marks have been specifically used at the website corresponding to the domain. Circumstances indicate that Respondent’s registration of the domain name in dispute and its use of the website primarily serve to confuse consumers and are in bad faith. Even if its website is changed, Respondent’s use of the domain name does not exclude the bad faith nature of the holding of its registration and use.
The panel concludes in the circumstances that Respondent’s 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 Complainant.
Zentaro Kitagawa
Sole Panelist
Dated: October 8, 2007
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