WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Teleperformance v. Venkateshwara Distributor Private Limited and PrivacyP Case No. D2010-0685 1. The Parties
Complainant is Teleperformance of Paris, France, represented by Inlex Conseil, France.
Respondents are Venkateshwara Distributor Private Limited of Mumbai, India, and PrivacyP of Moergestel, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the “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 April 30, 2010. On April 30, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the Domain Name. On May 4, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 6, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 11, 2010. The Center verified that the Complaint together with the amendment to 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 Respondents of the Complaint, and the proceedings commenced on May 17, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 6, 2010. Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on July 7, 2010.
The Center appointed John R. Keys, Jr. as the sole panelist in this matter on June 18, 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
Complainant is engaged in a number of lines of business, including communications services and, specifically, the operation of telephone call centers.
Complainant owns a number of national and international registrations of its TELEPERFORMANCE trademark and service mark, including the following:
European Community No. 003460524, in classes 16, 35, and 38, registered September 26, 2005;
France No. 1354316, in classes 9, 16, 35, and 38, filed September 6, 1978;
United States of America No. 1781132, in classes 16, 35, and 38, registered July 13, 1993;
International No. 507250, in classes 9, 16, 35 and 38, with numerous country designations, filed April 9, 1986.
Complainant also owns several domain name registrations based upon its TELEPERFORMANCE mark, including the following:
, registered October 28, 1995;
, registered April 25, 2000;
, registered November 19, 2001;
, registered November 7, 2003; and
, registered January 27, 2004.
The Domain Name, , was registered on December 28, 2003.
The Domain Name opens to a website containing links to various commercial sites for services related, among other things, to communications, call centers, and related employment opportunities. 5. Parties' Contentions A. Complainant
Complainant contends that the Domain Name is confusingly similar to Complainant's TELEPERFORMANCE trademark, varying from the trademark only in the deletion of one letter “r”. The slight difference does not avoid the confusing similarity and constitutes “typosquatting” on Complainant's trademark.
Complainant contends that Respondents have no rights or legitimate interest in respect of the Domain Name, citing the following:
Respondents do not own trademarks or have common law rights in the designations “teleperformance” or “teleperfomance;”
Respondents do not hold themselves out as, and have not been known as “teleperformance” or “teleperfomance;”
Respondents have no license or authority from Complainant to use “teleperformance” or “teleperfomance;”
There is no relationship between Complainant and Respondents;
Respondents are not making a noncommercial or fair use of the website.
Complainant contends that Respondents registered and are using the Domain Name in bad faith, citing the following factors:
Complainant's name is well-known around the world in the field of providing call centers;
Complainant's TELEPERFORMANCE trademark has no established meaning in English or in French and is thus distinctive in identifying Complainant's call center services;
Previous UDRP decisions have concluded that TELEPERFORMANCE is well known;
Registration of a domain name nearly identical to Complainant's trademark shows bad faith registration;
The Domain Name directs to a parking website with commercial links in the field of call centers that compete with Complainant, and Respondents are, therefore, attempting to attract for commercial gain Internet users by creating a likelihood of confusion with Complainant's trademark;
Respondents have been subject to several previous complaints concerning fraudulent registration of domain names and cybersquatting. B. Respondent
Respondents did not reply to Complainant's contentions. 6. Discussion and Findings
Respondents did not respond to the Complaint therefore the Panel will consider whether Respondents have been given adequate notice of the proceeding. The evidence indicates the Center sent the Complaint in electronic form and sent the Written Notice in hard copy by courier to Respondents at the addresses provided in Respondents' registration information available in the WhoIs and from the Registrar. The Panel concludes that the Center discharged its responsibility under the Rules to notify Respondents of the Complaint and the administrative proceeding.
Where there is no response to the complaint, the panel must decide the dispute based upon the complaint. Rules, paragraphs 5(e) and 14(a). The panel is to decide the complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any principles of law the panel deems applicable. Rules, paragraph 15(a). Under Rules, paragraph 14(b), Respondents' failure to answer entitles the Panel to “draw such inferences therefrom as it considers appropriate”.
Under the Policy, paragraph 4(a), Complainant must prove each of three elements of its case in order to obtain the requested relief:
(i) Respondents' Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondents have no rights or legitimate interests in respect of the Domain Name; and
(iii) Respondents registered and are using the Domain Name in bad faith. A. Identical or Confusingly Similar
Complainant demonstrates that it owns a number of national and international registrations of the trademark TELEPERFORMANCE and that Complainant thus has established legal rights in the mark.
The Domain Name, , is confusingly similar to Complainant's trademark. The Domain Name, in its principal element, differs from Complainant's trademark only in the deletion of one letter “r” from the trademark. This minor, easily overlooked difference, is insufficient to distinguish the Domain Name from the trademark in appearance or sound and is therefore insufficient to negate the confusing similarity of the Domain Name to the trademark. See ESPN, Inc. v. XC2,WIPO Case No. D2005-0444; E v. Yingkun Guo, dba This is 4 sale,WIPO Case No. D2006-0694; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin,WIPO Case No. D2002-0440; Deutsche Bank AG v. New York TV Tickets, Inc.,WIPO Case No. D2001-1314; Playboy Enterprises v. Movie Name Company,WIPO Case No. D2001-1201.
The addition of the suffix “.com” to the trademark is deemed purely a functional necessity of domain names and insufficient to distinguish the Domain Name from the trademark.
Complainant has established the first element of its case. B. Rights or Legitimate Interests
Complainant makes a prima facie case that Respondents have no rights or legitimate interests in the Domain Name, by showing, first, that Respondents are not known by the Domain Name, have no apparent trademark rights in the Domain Name, have no relationship with Complainant, and have not been authorized by Complainant to use Complainant's trademark or to register the Domain Name. The evidence is sufficient also to show that Respondent's website is commercial in nature and bears no indication of fair use.
Respondents have not come forward with any evidence that they are using the Domain Name in connection with a bona fide offering of goods or services which, if proved, could establish that they have rights or legitimate interests in the Domain Name. Policy, paragraph 4(c)(i). The Panel finds and concludes that Respondents' use of a confusingly similar Domain Name that basically takes advantage of a potential typographical error in Complainant's trademark and domain name to divert Internet traffic from Complainant's website to Respondents' website offering links to competing services does not constitute a bona fide offering of goods or services. Rather, it is, as discussed below, a bad faith use of the Domain Name.
Complainant establishes the second element of its case. C. Registered and Used in Bad Faith
Complainant must demonstrate that Respondents registered and are using the Domain Name in bad faith. Policy, paragraph 4(a)(iii). Paragraph 4(b)(iv) of the Policy provides that the following, among other factors, shall be evidence of the registration and use of a domain name in bad faith:
By using the domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site . . . by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
Respondents' scheme is essentially to exploit an Internet user's typing or spelling error in entering Complainant's company name, trademark or domain name to divert the user from Complainant's website for the purpose of Respondents' own commercial gain. Respondents are intentionally exploiting the user's confusion between Complainant's trademark and the Domain Name in order to obtain a commercial benefit for themselves. This constitutes sufficient evidence of bad faith registration and use of the Domain Name within the meaning of the Policy. See Lyonnaise de Banque v. Richard J.,WIPO Case No. D2006-0142.
The facts that Complainant's trademark is distinctive in itself and well-known with respect to call center services and that Respondents use a Domain Name that is nearly identical to the trademark to direct the user to a site promoting call center and related services, all suggest that Respondents' actions in exploiting confusion with the trademark were completely intentional. See Teleperformance v. Click Cons. Ltd.,WIPO Case No. D2008-0242.
Respondents' bad faith with respect to the registration and use of the Domain Name in this case must be established independently from the decisions of prior UDRP panels. Nevertheless, the fact that Respondents have been involved in a prior UDRP case exhibiting similar conduct tends to reinforce the decision here. See Lyonnaise de Banque v. Richard J.,WIPO Case No. D2006-0142; Lernco, Inc. v. Venkateshwara Distributor Private Ltd.,WIPO Case No. D2009-1012.
Complainant establishes the third and final necessary element of its case. 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.
John R. Keys, Jr.
Sole Panelist
Dated: July 2, 2010
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