WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Cisco Technology, Inc. v. Babak Zandpur Case No. D2009-1753 1. The Parties
The Complainant is Cisco Technology, Inc. of San Jose, California, United States of America, represented by Fenwick & West, LLP, United States of America.
The Respondent is Babak Zandpur of Oxnard, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 22, 2009. On December 22, 2009, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On December 30, 2009, GoD, Inc. 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 January 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 26, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 27, 2010.
The Center appointed William F. “Bill” Hamilton as the sole panelist in this matter on February 5, 2010. 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 is a renowned manufacture and supplier of computer routers, technology products, and related good and services. The Complainant owns over 50 registration of the LINKSYS mark around the world including a registration for the LINKSYS mark with the United States Patent and Trademark Office dated March 17, 1998. In addition, the Complainant owns more than 400 domain names which incorporate the LINKSYS mark.
The Respondent registered the disputed domain name on March 27, 2002. 5. Parties' Contentions A. Complainant
The Complainant contends the disputed domain name is confusing similar the Complainant's LINKSYS mark because the mark is incorporated in its entirety into the disputed domain name and that the mere addition of the generic word “support” in the disputed domain name increases the likelihood of confusion. The Complaint contends the Respondent does not have any rights or legitimate interests in the disputed domain name because the Complainant has never provided authorization to Respondent to use the LINKSYS mark or the disputed domain name and the Respondent does not appear to have any legitimate business in connection with or is commonly known by the disputed domain name. The Complaint contends the disputed domain name was registered in bad faith because the Respondent was on constructive notice of the Complainant's ownership of the LINKSYS mark due to its numerous registrations around the world including the United States of America, which registration is relevant because the Respondent provided a business address in the state of California, United States of America, when registering the disputed domain name. The Complainant also asserts the disputed domain name was registered in bad faith because it currently resolves to a landing page featuring links to websites offering products and services which are in competition with the products and services offered by the Complainant. Lastly, the Complainant argues that bad faith is evidenced by the lack of response by the Respondent to the Complainant's cease and desist letters sent by email to an address which no longer apparently accepts emails and because a couriered hard copy of the Complaint was refused at the address provided by the Respondent to the registrar of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy establishes three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) The respondent's domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights: and
(ii) The respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The respondent's domain name has been registered and is being used in bad faith.
Each of the aforesaid three elements must be proved by a complainant to warrant relief. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant's LINKSYS mark. The LINKSYS mark is incorporated in its entirety in the disputed domain name. The only addition to the LINKSYS mark is the generic word “support.” It is now axiomatic that the utilization of such generic terms in a domain name which contains established trademarks will not avert a finding of confusing similarity. Graybar Services, Inc. v. Lawrence Giglio, Grssbar Electric Inc.,WIPO Case No. D2009-0993 (): Pfizer Inc. v. Asia Ventures, Inc.,WIPO Case No. D2005-0256 (); bwin Interactive Entertainment AG v. Medios International S.A.,WIPO Case No. D2009-1112 (). The Complainant has met its burden under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out in particular, but without limitation, three circumstances which, if proved by a respondent, shall be evidence of a respondent's rights to or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii), namely:
(i) before any notice of the dispute to respondent, respondent's use of, or demonstrable preparation to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods and services; or
(ii) respondent has been commonly known by the disputed domain name, even if respondent has acquired no trademark or service mark rights; or
(iii) respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The disputed domain name is clearly being used for commercial purposes. Thus Respondent cannot make any claim for a legitimate noncommercial or fair use of the disputed domain name. The Complainant has disavowed any connection with the Respondent or authorizing the Respondent to use the Complainant's LINKSYS mark or the disputed domain name. Additionally the landing page of the disputed domain name does not reflect any legitimate business of the Respondent utilizing the disputed domain name or LINKSYS mark or that the Respondent is utilizing the disputed domain name in connection with a bona fide offering or goods or services. The Complainant has established a prima facie case that the Respondent lacks any rights or legitimate interests in the disputed domain name. The Respondent has not come forth to rebut the presumption created by the Complainant. AmerCable Incorporated v. Edward Van Rossum, WIPO Case No. D2009-1292 (). The Panel finds that the Respondent lacks any rights of legitimate interests in the disputed domain name. The Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:
(i) circumstances indicating that respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of complainant, for valuable consideration in excess of respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that respondent has engaged in a pattern of such conduct; or
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent's website or other on-line locations, by creating a likelihood of confusion with complainant's mark as to the source, sponsorship, affiliation, or endorsement of respondent's website or locations or of a product.
The Panel finds the disputed domain name was registered and is being used in bad faith. The LINKSYS mark was registered in over 50 countries including the United States at the time the disputed domain name was registered by the Respondent. The LINKSYS mark is well-known and in the circumstances could not have reasonably escaped the Respondent's attention when the Respondent registered the disputed domain name. The Nasdaq Stock Market, Inc. v. H. Pouran,WIPO Case No. D2002-0770 ( and ). The disputed domain name currently resolves to a landing page featuring links to websites offering products and services in competition with the Complainant. Presumably the Respondent earns a “click through” or other fees related to traffic visiting and passing through this website. The Panel must conclude on the evidence presented (including the Respondent's failure to answer the Complainant's cease and desist letters and the Complaint) that the disputed domain name was registered and is being used in bad faith to attract unsuspecting Internet users searching for the Complainant's products and services to the disputed domain name in an attempt to misdirect such users to websites offering competitive products. L'Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc.,WIPO Case No.D2005-0623 (); Guccio Gucci S.p.A., v. Bravia Stoli,WIPO Case No. D2009-1170 (). The Complainant has met its burden under 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 the Complainant.
William F. “Bill” Hamilton
Sole Panelist
Dated: February 23, 2010
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