WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AC Webconnecting B.V. v. Virtual Media Entertainment Case No. D2010-0994 1. The Parties
The Complainant is AC Webconnecting B.V. of Rotterdam, Netherlands, represented by Merk-Echt B.V., Netherlands.
The Respondent is Virtual Media Entertainment of Neamt, Romania. 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 June 16, 2010. On June 17, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On June 18, 2010, 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 June 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 13, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on July 14, 2010.
The Center appointed Jon Lang as the sole panelist in this matter on July 21, 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 the owner of Community Trademark XLOVECAM, No. 005506241 filed on November 28, 2006 with a registration date of October 17, 2007. The description of the services associated with the trade mark registration is as follows: “Broadcasting, dissemination and transmission of visual images, audio information, graphics, data and other information, using radio, telecommunications apparatus, electronic media or the Internet.”
It is said by the Complainant that the Respondent is a competitor.
The disputed domain name (the Domain Name) was registered on June 3, 2009. 5. Parties' Contentions A. Complainant
i) The Domain Name is confusingly similar to the Complainant's trademark.
The Domain Name incorporates the trademark and adds the word “blog”, a word that is highly descriptive being an abbreviation of “weblog” and used to refer to a webpage containing personal publications or journals.
The Domain Name therefore suggests that it relates to a blog containing publications on XLOVECAM.
ii) The Respondent has no rights or legitimate interests in respect of the Domain Name.
The Respondent has not obtained any authorisation to use the Complainant's trademark XLOVECAM.
The Respondent's use of the Domain Name cannot be considered as legitimate, noncommercial or fair use. The Respondent has no legitimate rights in the Domain Name and is using it for commercial gain.
iii) The Domain Name was registered and is being used in bad faith.
The Complainant's trademark was registered earlier than the Domain Name and the Respondent is presumed to have taken notice of the trademark at the time of registration of the Domain Name.
The Respondent is a competitor of the Complainant and therefore there is a likelihood of confusion of Internet users as between the Complainant's trademark and the Domain Name.
The Respondent is attempting to attract Internet users to its website for commercial gain, taking advantage of the likelihood of confusion.
By letter of May 27, 2010, the Respondent was contacted on behalf of the Complainant and in response the Respondent offered to transfer the Domain Name upon payment of € 12,000 an exceptionally high offer which should be considered proof of bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Domain Name incorporates the Complainant's trademark in its entirety and comprises the dominant part of the Domain Name. The Complainant's trademark, within the Domain Name, is followed by the generic term “blog”. The suffix “.com” is to be disregarded for comparison purposes.
There is clearly a possibility, if not likelihood, that Internet users may be confused into thinking that the owner of the Domain Name is also the owner of the trademark to which it is similar, or at least that there is some form of association between the Respondent and the Complainant. The use of the word “blog” immediately after the Complainant's trademark far from distinguishes the Domain Name from the trademark. It may even increase the scope for confusion.
Accordingly, the Panel finds that the Domain Name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The mere registration of a domain name does not give the owner a right or a legitimate interest in respect of that domain name. There must be something more. The Respondent is not licensed by or affiliated with the Complainant. However, a respondent can show it has rights to or legitimate interests in a domain name in various other ways. For instance, it can show that it has been commonly known by the domain name or that it is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.
However, the Respondent is not known by the Domain Name and given the nature of the website to which the Domain Name resolves, it cannot be said that there is legitimate noncommercial or fair use. It appears to be a competing site
A respondent can also show that it was using a domain name in connection with a bona fide offering of goods or services. However, it is difficult to accept in the circumstances of this Complaint that promotion of a competing website by linking it to a domain name confusingly similar to a trademark owned by the entity with which the website competes, could amount to a bona fide offering of goods or services.
There is no evidence before this Panel that the Respondent has rights or legitimate interests in the Domain Name. Indeed, there is no evidence before this Panel to contradict or challenge any of the contentions of the Complainant. The Panel finds therefore that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. The burden to demonstrate such rights or legitimate interests therefore falls on the Respondent. As the Respondent has not come forward with a Response or taken any other action to address the Complaint, this Panel finds the Complainant has fulfilled the requirements of this sub-paragraph of the Policy. C. Registered and Used in Bad Faith
One way a complainant may demonstrate bad faith registration and use, is to show that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant's mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it. This appears to be the case here.
Moreover, bad faith may be demonstrated by showing that circumstances exist indicating that a domain name has been registered primarily for the purposes of selling the registration to the complainant (or a competitor of the complainant) for a sum in excess of out of-pocket expenses. €12,000 would seem to be a figure in excess of out-of-pocket expenses “directly related to the domain name”. Whether such a sale was the “primary” purpose of the registration will remain unknown. But the above examples of circumstances suggesting bad faith, taken from paragraph 4(b) of the Policy, are no more than indicative. Furthermore, the examples given in paragraph 4(b) of the Policy are not intended to constitute an exhaustive list.
In all the circumstances of this Complaint, the Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name in bad faith. 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.
Jon Lang
Sole Panelist
Dated: July 31, 2010
Full & Egal Universal Law Academy