The Complainant is RapidShare AG, Christian Schmid of Cham, Switzerland, represented by Greenberg Traurig, LLP, United States of America.
The Respondent is InvisibleR, Domain Admin of Fernley, Nevada, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2010. On June 28, 2010, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the disputed domain name. On June 28, 2010, eNom, 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 30, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 20, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 21, 2010.
The Center appointed Ross Wilson as the sole panelist in this matter on July 26, 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 Swiss corporation that was founded in 2006. It operates a widely used “one click” file host that facilitates file sharing and at one stage was the twelfth most visited website. The Complainant’s operation requires a vast storage capacity of several petabytes (a petabyte is a million gigabytes) and an Internet connection capable of transferring hundreds of gigabytes simultaneously so that it can handle the volumes of data transfer required for its customers and users.
The Complainant’s trademarks are RAPID SHARE registered in the United States by the second Complainant and filed on September 21, 2005, and RAPIDSHARE and RAPID SHARE THE EASY WAY TO SHARE YOUR FILES both registered and owned by the first Complainant in the European Community and filed on November 21, 2005.
The Respondent’s domain name was registered on October 20, 2008. The Respondent’s website provides Internet users with a search engine that crawls the web to identify links to files hosted through the Complainant’s “” website. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its registered trademarks with the addition of the generic prefix “crawl”.
The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name as it has never operated any bona fide or legitimate business under the disputed domain name and is not making a protected non-commercial or fair use of the disputed domain name. The Respondent is not commonly known as “crawlrapidshare”. In fact the Respondent is using the disputed domain name to drive Internet traffic to its website which provides a search engine.
The Complainant contends that the disputed domain name was registered in bad faith because the totality of the circumstances indicates that the Respondent knew of the Complainant’s trademark as the disputed domain name is nearly identical to the Complainant’s mark and the Respondent’s website contains a direct reference the Complainant’s trademark by claiming to be the “first realtime rapidshare crawler search engine”.
The Complainant considers that bad faith use of the disputed domain name is demonstrated by the Respondent using the disputed domain name to provide a search engine and a list of the last 200 searches, both designed to assist web users who wish to violate the copyright of others by locating and sharing copyright protected documents online. The Respondent makes no attempt to discourage such copyright infringement, providing no abuse contacts or stated policies against the use of its website in such a manner.
Finally, the Complainant views bad faith registration and use is evidenced by the Respondent seeking commercial gain by using a link on its website to another hosting website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has demonstrated that it has rights in the trademarks RAPID SHARE, RAPIDSHARE and RAPID SHARE THE EASY WAY TO SHARE YOUR FILES.
The disputed domain name consists of the Complainant’s RAPID SHARE or RAPIDSHARE trademarks in their entirety together the prefix “crawl” and the gTLD “.com”.
It has been held in many previous cases that incorporating a trademark in its entirety is typically sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see The Stanley Works and Stanley Logistics, Inc. v. Camp Creek Co., Inc.,WIPO Case No. D2000-0113 and World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles,WIPO Case No. D2000-1306). Similarly, it is widely held that the addition of a generic word like “crawl” does not avoid confusing similarity.
The Panel acknowledges that the gTLD “.com” suffix only indicates that the disputed domain name is registered under that gTLD and cannot be considered distinctive.
In view of the above, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to the trademark in which it has demonstrable rights. The Complainant therefore has satisfied the first element of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out how a respondent can demonstrate rights to or legitimate interests in a disputed domain name. In this case, the Respondent has chosen not to file any submission or evidence to demonstrate its rights or legitimate interests in the disputed domain name. In this situation, paragraph 14(b) of the Rules allows the Panel, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.
The Respondent has chosen to use a domain name that contains the Complainant’s trademark in its entirety when there has been no authorisation from the Complainant. As a consequence, the disputed domain name infers a website related to the services of the Complainant. Instead, the website provides the Respondent’s search engine and a link to another hosting site. Clearly the Respondent is trying to benefit from the reputation of the Complainant’s widely known trademark. No rights or legitimate interests derive from this type of use of another’s trademark. Previous panels have held that rights and legitimate interests cannot be created where the respondent would not choose such a name unless it was seeking to create an impression of association with the complainant (see Drexel University v. David Brouda,WIPO Case No. D2001-0067).
There is no evidence before the Panel to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the disputed domain name. Moreover, the Complainant has denied having any connection with the Respondent or providing any license or authorisation at all. In Guerlain S.A. v. Peikang,WIPO Case No. D2000-0055 the panel stated that “in the absence of any license or permission from the [c]omplainant to use any of its trademarks or to apply for or use any domain name incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by [r]espondent”.
Despite the opportunity provided through this dispute process, the Respondent has chosen not to rebut the Complainant’s case or assert any rights or legitimate interests in the disputed domain name.
Based on the above, the Panel considers the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel is satisfied that the Complainant has proven the second element of the Policy. C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of the domain name in bad faith is evidenced.
Paragraph 4(b) (iv) states that “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, 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.”
The Panel considers that the Complainant has made a case that the Respondent has registered and used the disputed domain name in bad faith. It is clear to the Panel that the Respondent is intentionally using the Complainant’s trademark in the disputed domain name to attract users to its website for commercial gain. The Respondent’s use of the Complainant’s trademark in its entirety would clearly confuse Internet users as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. As expressed in Singapore Airlines Limited v. European Travel Network,WIPO Case No. D2000-0641 and Realtime Forex SA v. Rhone Consultants SA,WIPO Case No. D2006-0089, the disputed domain name is so obviously connected with the complainant’s trademark, its very use by someone not connected with the complainant suggests opportunistic bad faith.
Deriving commercial gain stemming from Internet users visiting the Respondent’s website, believing that they were about to visit an official website of the Complainant, represents bad faith use of the disputed domain name (see Real Madrid Club De Futbol v. Michele Dinoia,WIPO Case No. D2010-0261).
On the basis of the above and when considered together with the fact that the Respondent has no rights or legitimate interests in the disputed domain name, the Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and used 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.
Ross Wilson
Sole Panelist
Dated: August 9, 2010
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