WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Nokia Corporation, Siemens AG, Nokia Siemens Networks Oy v. Chen Fang Fang Case No. D2008-1908 1. The Parties
The Complainants are Nokia Corporation, of Espoo, Finland; Siemens AG , of Munich, Germany; Nokia Siemens Networks Oy, of Espoo, Finland respective, represented by Berggren Oy Ab, Finland.
The Respondent is Chen Fang Fang, of Shanghai, People's Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2008. On December 17, 2008, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On December 23, 2008, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR 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” or “UDRP”), 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 December 24, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 13, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 14, 2009.
The Center appointed Lone Prehn as the sole panelist in this matter on January 23, 2009. 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 Nokia Corporation is the owner of trademark registrations for the mark NOKIA in over 170 countries globally. The Complainant Nokia Corporation has been a party to several previous UDRP decisions under the Policy in which the status of the trademark NOKIA as being well-known has been accepted and confirmed (see Nokia Corporation v. durmus dalda,WIPO Case No. D2006-0931). The NOKIA mark is used for a wide range of telecommunications and multimedia products as well as related services. Nokia Corporation is one of the world's largest manufacturers of mobile phone products with net sales of EUR 51.058 billion in the fiscal year 2007.
The Complainant Siemens AG is the owner of trademark registrations for the mark SIEMENS in over 170 countries globally, including in the United States of America, European Union and China. The SIEMENS mark is also considered as famous and well-known mark in a number of jurisdictions globally. Siemens AG is one of the world's largest electrical engineering and electronic companies operating in industry, energy and healthcare sectors. In the fiscal year 2007, Siemens AG and its affiliates had revenue of EUR 72.4 billion. The SIEMENS mark is used for a wide range of electronic products and services, including household appliances, automation, lighting and building technology products and services, IT solutions and services, traffic and rail solutions and wireless communications solutions.
The Complainant Nokia Siemens Networks is the owner of the corporate and trading name NOKIA SIEMENS NETWORKS. The new joint venture Nokia Siemens Networks Oy, co-owned and co-founded by Nokia Corporation and Siemens AG, was publicly and officially announced by Nokia Corporation and Siemens AG on June 19, 2006. The joint venture Nokia Siemens Networks Oy was established on April 1, 2007. Nokia Siemens Networks is one of the world's largest network communications companies with operations in 150 countries in the world. The joint venture comprises the former Networks Business Group of Nokia Corporation and the carrier-related businesses of Siemens AG. With pro forma revenues of approximately EUR 17 billion for the calendar year 2006, Nokia Siemens Networks is one of the top three vendors in the telecommunications infrastructure industry.
The disputed domain name was registered on August 25, 2008. 5. Parties' Contentions A. Complainants
The Complainants contend that the disputed domain name incorporates the Complainants' two globally well-known and registered trademarks NOKIA and SIEMENS, and that it is further almost identical to the Complainant's corporate and trading name NOKIA SIEMENS NETWORKS, which it uses in business as a trademark, with only the last letter of the mark left out.
Based on the above, the Complainants contend that the disputed domain name is clearly identical and confusingly similar to the trademarks in which the Complainants have rights in accordance with Policy, paragraph 4(a)(i) and Rules, paragraph 3(b)(ix)(1) .
The Complainants further contend in accordance with the Policy, paragraph (4)(a)(ii) and Rules, paragraph 3(b)(ix)(2), that it is evident that the Respondent has no rights or legitimate interests in respect of the disputed domain name that is the subject of the Complaint.
Finally, the Complainants contend that the disputed domain name should be considered as having been registered and used in bad faith by the Respondent in accordance with Policy paragraphs 4(a)(iii) and 4(b) and the Rules, paragraph 3(b)(ix)(3), because the whole WhoIs data on the domain name holder appears false or fake, because one of the Complainants, Nokia Siemens Networks Oy, on August 28, 2008 received an e-mail from a person who indicated that the disputed domain name was available at the price of EUR 7,500, and because the web site under the disputed domain name resolves to a web site which contains links to, inter alia, mobile phone, cell phone and network security products and services, including the Complainants' competitors' products and services. The disputed domain name resolves to a web site which appears to be a so called “landing page” or a “parking page” to which a domain name holder can choose different links from a service provider and will receive revenue when the web site visitor's click on the links displayed on the web site. B. Respondent
The Respondent did not reply to the Complainants' contentions. 6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(e) of the Rules to as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainants to make out its case in all respects under paragraph 4(a) of the Policy. Namely the Complainants must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name (paragraph 4(a)(ii)); and
(iii) the disputed domain name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 Under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”. A. Identical or Confusingly Similar
The disputed domain name is quasi-identical to the corporate and trading name of the Complainant NOKIA SIEMENS NETWORKS. In addition, the disputed domain name contains the Complainants' famous trademarks NOKIA and SIEMENS and is thus confusingly similar herewith.
In this connection the Panel observes that it finds that the Complainants have shown that the name NOKIA SIEMENS NETWORKS has become a distinctive identifier associated with the Complainants or its goods and services.
Thus, the Panel finds that the first element of the Policy has been met. B. Rights or Legitimate Interests
The Panel considers that under paragraph 4(a)(ii) of the Policy, the overall burden of proof is on the Complainants. However, once the Complainants present a prima facie evidence that the Respondent has no rights or legitimate interests, the burden shifts to the Respondent. In the present case, the Respondent has not submitted any response and the Panel may draw negative inferences from the Respondent's default.
In the absence of any license or permission from the Complainants to use the well-known trademarks NOKIA and SIEMENS or the corporate and trading name NOKIA SIEMENS NETWORKS in the present circumstances, no actual or contemplated bona fide or legitimate use of the disputed domain name can be claimed.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services at present. He offers a web site which contains links to, inter alia, mobile phone, cell phone and network security products and services, including the Complainants' competitors' products and services. The disputed domain name resolves to a web site which appears to be a so called “landing page” or a “parking page” to which a domain name holder can choose different links from a service provider and will receive revenue when the web site visitors click on the links displayed on the web site. In addition, it appears that a person offered to sell the domain name to the Complainant for EUR 7,500. It can be inferred that the Respondent's primary purpose in registering and using the domain name was most likely simply to sell it to the Complainant.
There is no evidence to suggest that the Respondent has been commonly known by the disputed domain name. The name “nokiasiemensnetwork” has no apparent association with the Respondent.
Accordingly, the Panel concludes that the Complainants have satisfied the second element under paragraph 4(a) of the Policy in the present case. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the disputed domain name “has been registered and is being used in bad faith”. As this requirement is conjunctive, the complainant must establish both bad faith registration and bad faith use. In addition the circumstances listed in paragraph 4(b) of the Policy are not exclusive, and that other circumstances may likewise lead to a finding of bad faith registration and use.
Since the trademarks NOKIA and SIEMENS are well-known in many countries, including in China, the Respondent presumably registered the disputed domain name with notice of the Complaints' trademark registration. The new joint venture Nokia Siemens Networks Oy, co-owned and co-founded by Nokia Corporation and Siemens AG, was publicly and officially announced by Nokia Corporation and Siemens AG on June 19, 2006 and established on April 1, 2007 and it is highly unlikely that the Respondent registered the disputed domain name without knowing about and having this company in mind.
It is also concluded that the Respondent registered the disputed domain name either in the expectation of selling it to the Complainant which is supported by the fact that the Complainant received an offer to transfer the domain name for EUR 7,500 before the Complaint was submitted to the Center, or in the expectation of generating revenue by click-per-view at the parking page.
Based on the foregoing, the Panel is satisfied that bad faith registration and use have been sufficiently established with respect to the disputed domain name in accordance with paragraph 4(b) of the Policy. 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 one of the Complainants, namely Nokia Siemens Networks Oy, as specified in the Complaint.
Lone Prehn
Sole Panelist
Dated: February 6, 2009
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