WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION SAP AG v. Micah Quarles/Domains by Proxy Inc. Case No. D2009-1297 1. The Parties
Complainant is SAP AG of Walldorf, Germany, represented by Panitch Schwarze Belisario & Nadel, LLP, United States of America.
Respondent is Micah Quarles of Northborough, Massachusetts, United States of America; Domains by Proxy Inc. of Scottsdale, Arizona, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. (“Domain Name”) 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2009. On October 2, 2009 the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Domain Name. On October 6, 2009, GoD, 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” 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 October 8, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 28, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on October 29, 2009.
The Center appointed Clive L. Elliott as the sole panelist in this matter on November 5, 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
Complainant is a software company operating worldwide with its headquarters in Germany. It has been in operation since 1972 and is listed on the Frankfurt and New York stock exchanges.
Complainant is the owner of more than 600 domain names incorporating the mark SAP. It is also the owner of various trademark registrations and applications for the trademark SAP. Details of such domain names and trademarks were provided.
The Domain Name was registered on April 8, 2009. 5. Parties' Contentions A. Complainant
Complainant states that it has been offering its products and services under the SAP trademark in the United States since the late 1980's. It also contends that, based on its long and continuous use of the SAP trademark and the success of the products and services provided thereunder, the SAP trademark has come to be widely and highly recognized by the public as a source of IT, software, and business solutions services in the United States and around the world. Complainant also contends that the SAP trademark is well-known around the world and that this is supported by the 2008 Interbrand Survey of Best Global Brands, in which SAP ranked 31st in a list of the world's top brands.
Complainant submits that the following are domain names it owns which incorporate the SAP trademark as well as the word “netweaver”:
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Complainant asserts that Respondent registered the Domain Name without authority to do so and that Respondent was aware of Complainant's rights in the SAP trademark as Complainant wrote to Domain by Proxy, the privacy shield provider on July 28, 2009 outlining its trademark rights and requesting that the site “www.” be disabled. Complainant says that Domain by Proxy forwarded this communication to Micah Quarles, who responded on August 6, 2009. Complainant states that in Mr. Quarles' response he indicates that he is a consultant and his purpose in obtaining the Domain Name is to “redirect it to a consulting website business”. Complainant also states that Mr. Quarles admits in his letter that he is not an SAP reseller or SAP partner.
Complainant asserts that the Domain Name fully incorporates both the SAP trademark and the SAPNETWEAVER trademark. Complainant suggests that the addition of the descriptive abbreviation “pros” does not provide sufficient differentiation from the SAP trademark.
Complainant contends that Respondent has no legitimate interest in or legitimate, bona fide business purpose for the Domain Name, and that it has no legitimate rights in the SAP trademark, nor has Respondent been authorized or licensed by SAP to use the SAP trademark or name. Complainant also contends that Respondent is not a reseller of SAP products and services.
Complainant asserts that the website “www.” is a parking site, with links to other companies providing competing products and services and as such generates pay per click (PPC) advertising revenues for the domain name holder. Complainant submits that the holding of a domain name for PPC purposes is not a legitimate one especially where the links are based on the trademark value of the domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant provides sound evidence to establish that it is the owner of the SAP trademark, through registration and use of the trademark and that SAP is one of the world's top brands. It also provides evidence to show it uses the word “netweaver” in the course of trade in a number of domain names.
Complainant asserts that the Domain Name fully incorporates both of Complainant's registered trademarks, SAP trademark and the SAPNETWEAVER trademark and that the addition of the descriptive abbreviation “pros” (presumably denoting “professional”) does not provide sufficient differentiation from the SAP trademark.
The Panel finds that Complainant has made extensive use of the SAP trademark and some use of the “netweaver” name and is entitled to rely upon its rights and interests in the combined term SAPNETWEAVER, (hereinafter referred to as “the SAPNETWEAVER mark and name”).
The Domain Name is confusingly similar to the SAPNETWEAVER mark and name irrespective of the addition of the descriptive term “pros”. It is therefore found that Complainant has rights in the SAPNETWEAVER mark and name and that the requirements of paragraph 4(a)(i) of the Policy are met. B. Rights or Legitimate Interests
Respondent is not affiliated with Complainant in any way and has not been authorized by Complainant to use the SAPNETWEAVER mark and name or to seek the registration of any domain name incorporating the said mark and name.
The registration and use of the SAPNETWEAVER mark and name clearly preceded the registration of the Domain Name. The Domain Name makes clear reference to the SAPNETWEAVER mark and name and a direct reference to the SAP trademark and the “netweaver” name respectively.
Complainant asserts that the Domain Name is being used as a parking site, the purpose being to divert Internet traffic to pay-per-click websites, by linking to other companies providing competing products and services. The existence of this business model and the likelihood of damage to a rights holder are well established and need not be repeated here. The allegation has been made by Complainant and no effort has been made to challenge or refute it.
These assertions, considered in the light of a failure to deny or explain, are sufficient for the Panel to draw an inference that Respondent has no rights or legitimate interests in respect of the Domain Name. Complainant thus succeeds in meeting the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that Respondent has registered and uses the Domain Name in bad faith.
Given the present record, the allegations made and the lack of submission or evidence in response, the Panel infers that Respondent knew or must have known of Complainant's SAPNETWEAVER mark and name at the time it registered the Domain Name.
Complainant's submission that Respondent has registered the Domain Name for the purpose of a landing site and deriving pay-per-click revenue raises an inference of bad faith conduct. Further, Complainant asserts that Mr Quarles, for and on behalf of Respondent, indicated that he is a consultant and his purpose in obtaining the Domain Name was to “redirect it to a consulting website business”. Given that Respondent is not an SAP reseller or partner such redirection appears, on the face of it, to be improper.
In the absence of any explanation by Respondent the Panel finds that Respondent both registered and used the Domain Name in bad faith in accordance with paragraph 4(a)(iii) 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 Complainant.
Clive Elliott
Sole Panelist
Dated: November 16, 2009
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