WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deutsche Telekom AG v. Ghader Darvishpour
Case No. D2008-0618
1. The Parties
The Complainant is Deutsche Telekom AG, Bonn, of Germany, represented by Lovells LLP, Germany.
The Respondent is Ghader Darvishpour, Oshnavie, of Islamic Republic of Iran.
2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions d/b/a PublicDomainRegistry.Com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2008. On April 22, 2008, the Center transmitted by email to Directi Internet Solutions d/b/a PublicDomainRegistry.Com a request for registrar verification in connection with the domain name at issue. On April 23, 2008, Directi Internet Solutions d/b/a PublicDomainRegistry.Com transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on April 28, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 18, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 19, 2008.
The Center appointed Sandra J. Franklin as the sole panelist in this matter on June 6, 2008. 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 is Europe’s largest telecommunications company, serving customers in more than 65 countries. Complainant holds a large number of national, European Community and international trademarks for T-MOBILE, with use dating back to 1997. Complainant also conducts business under the domain name, and other similar domain names. Respondent registered on July 12, 2007.
5. Parties’ Contentions
A. Complainant
1. Respondent’s domain name is confusingly similar to Complainant’s T-MOBILE mark.
2. Respondents has no legitimate rights or interests in the domain name.
3. Respondent registered and used the domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson,WIPO Case No. D2000-0009 (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
1. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
2. Respondent has no rights or legitimate interests in respect of the domain name; and
3. the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant has produced evidence of its registrations for its T-MOBILE mark. The Panel finds these registrations are sufficient to establish Complainant’s rights in its T-MOBILE mark pursuant to Policy paragraph 4(a)(i). See Expedia, Inc. v. Inertia 3D, FA 1118154 (Nat. Arb. Forum January 18, 2008) (“Complainant asserts rights in the mark through its registration of the mark with the United States Patent and Trademark Office. This registration sufficiently establishes Complainant’s rights in the mark pursuant to Policy paragraph 4(a)(i).”)
Respondent’s domain name incorporates Complainant’s T-MOBILE mark with the addition of a hyphen, and a generic or descriptive term, with a common typographical error. None of these alterations distract from the prominence of Complainant’s mark in the disputed domain names. Also, the addition of the generic top-level domain (“gTLD”) “.com” is not relevant in evaluating whether a disputed domain name is confusingly similar to a mark. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s T-MOBILE mark pursuant to Policy paragraph 4(a)(i). See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum March 5, 2001) (finding that the domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum November 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Dow Jones & Co., Inc. v. Powerclick, Inc.,WIPO Case No. D2000-1259 (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such common typos do not change respondent’s infringement on a core trademark held by the complainant); see also Busy Body, Inc. v. Fitness Outlet Inc.,WIPO Case No. D2000-0127 (“[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . .”).
The Panel finds Policy paragraph 4(a)(i) has been satisfied.
B. Rights or Legitimate Interests
Complainant has asserted Respondent does not have rights or legitimate interests in the disputed domain names. Once Complainant presents a prima facie case supporting these assertions, the burden shifts to Respondent to establish it does have rights or legitimate interests in the disputed domain names pursuant to Policy paragraph 4(a)(ii). The Panel finds Complainant has presented a sufficient prima facie case to support its assertions. Respondent failed to submit a response to these proceedings. Therefore, the Panel assumes Respondent does not have rights or legitimate interests in the disputed domain names pursuant to Policy paragraph 4(a)(ii). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,WIPO Case No. D2001-0376 (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); See Also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum December 30, 2002) (“[B]ased on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). The Panel will nevertheless inspect the record and determine whether Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy paragraph 4(c).
At one time, the disputed domain name resolved to a commercial website that displayed “The REAL Solution to NetMarketing Success”. Subsequently, only an error message is displayed at the website. The Panel finds Respondent’s uses of the disputed domain name are not uses in connection with bona fide offerings of goods or services pursuant to Policy paragraph 4(c)(i), or legitimate noncommercial or fair uses pursuant to Policy paragraph 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum December 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
From the WhoIs information, Respondent does not appear to be commonly known by the disputed domain name. Additionally, the record indicates Complainant has never authorized Respondent to use its T-MOBILE mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain names and thus has no rights or legitimate interests pursuant to Policy paragraph 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp.,WIPO Case No. D2000-0020 (finding no rights or legitimate interests where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000-0403 (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
The Panel finds Policy paragraph 4(a)(ii) has been satisfied.
C. Registered and Used in Bad Faith
Respondent was using the domain name to operate a website that contained commercial information unrelated to Complainant. Internet users were likely confused as to Complainant’s sponsorship of or affiliation with the domain name and its contents. The Panel finds that using a domain name that incorporates a well-known trademark, and consequently is likely to confuse Internet users so that Respondent can gain financially based on that confusion, is evidence of bad faith registration and use pursuant to Policy paragraph 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum November 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy paragraph 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum March 21, 2000) (finding bad faith where the respondent registered and used a domain name confusingly similar to the complainant’s mark to attract users to a website sponsored by the respondent).
Respondent’s domain name does not currently resolve to an active website. However, as Respondent has failed to set forth evidence of any proposed use of the domain name and particularly in view of the Panel’s observations in the preceding paragraph, the Panel finds that Respondent has shown bad faith registration and use pursuant to Policy paragraph 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum August 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that the inactive use of a domain name permits an inference of registration and use in bad faith); see also Clerical Med. Inv. Group Ltd. v. C,WIPO Case No. D2000-1228 (November 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
The Panel finds Policy paragraph 4(a)(iii) has been 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 domain name be transferred to the Complainant.
Sandra J. Franklin
Sole Panelist
Dated: June 20, 2008
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