Complainant is Osram GmbH of Munich, Germany, represented by Hofstetter, Schurack & Skora Patent-und Rechtsanwälte, Germany.
Respondent is Ouwen Xing of Guangzhou, Guangdong, the People’s Republic of China. 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 May 23, 2011. On May 23, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On May 24, 2011, 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 Respondent of the Complaint, and the proceedings commenced on May 26, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2011. Respondent did not submit any formal response. Accordingly, the Center notified Respondent’s default on June 16, 2011.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on June 24, 2011. 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 the owner of the trademark OSRAM, which is also the dominant element of Complainant’s company name. Complainant has traded under the name Osram since its foundation in Germany in 1919, and is one of the largest lighting manufacturing companies.
Complainant has registered more than 500 OSRAM trademarks and service marks in over 150 countries and regions, including several international trademarks in the People’s Republic of China:
International Trademarks No. 567595 (1991), 579977 (1992), 645180 (1995), 645182 (1995), 666039 (1996), 694381 (1998).
Numerous prior UDRP decisions have discussed the international notoriety of Complainant’s OSRAM trademarks. See e.g., OSRAM GmbH v. Ocean Grenier,WIPO Case No. D2008-0083, OSRAM GmbH v. Transure Enterprise Ltd.,WIPO Case No. D2008-1032, OSRAM GmbH v. limingshu,WIPO Case No. D2010-0091, OSRAM GmbH v. Shanghai Huchuang Electronic Technology Co. Ltd.,WIPO Case No. D2011-0272.
In 2001-2003, Complainant built an advanced factory for light emitting diodes (LEDs). 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s OSRAM trademark, that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that Respondent has registered and is using the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. The Panel notes that Respondent submitted an email communication on June 7, 2011 stating: “ok how about give me some options instead of let me reading this paper?” 6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to decide a complaint “on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” A. Identical or Confusingly Similar
Complainant has demonstrated that it owns strong rights in the trademark OSRAM in connection with lighting and LEDs. The disputed domain name incorporates Complainant’s trademark in its entirety. The addition of the descriptive term “LED” (an abbreviation for “light-emitting diodes”) and the generic “.com” TLD extension do not add any distinctive subject matter for the purpose of evaluating confusing similarity.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests
Respondent is not a franchisee, authorized dealer, affiliated business or licensee of Complainant. Respondent is not an authorized agent of Complainant and Complainant has not authorized Respondent to register the disputed domain name or to otherwise use Complainant’s mark.
Respondent is not and has not been commonly known by the disputed domain name. There is no evidence that Respondent has made any demonstrable preparation for use of the disputed domain name in connection with a bona fide offering of services. Rather, the evidence indicates that Respondent registered and used the disputed domain name to attempt to divert Internet users to Respondent’s website, which advertises ecommerce software under the brand Joomla. The Panel notes that “Joomla” appears to be a free and open source content management system (CMS) for publishing content on the web and intranets. The OSRAM mark is not used in the content of the website. Rather, it is being used as a domain name to divert Internet users to Respondent’s site. Such use does not constitute a bona fide, legitimate use of the disputed domain name.
Accordingly, the Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the documented out of pocket costs directly related to the domain name; or
(ii) the 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website 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 the respondent’s website or location of a product or service on the respondent’s website or location.
The evidence indicates that Respondent was aware of Complainant’s trademark rights and use of Complainant’s trademark in connection with LED’s at the time of registering the disputed domain name. This explains Respondent’s addition of the descriptive term “leds” in the disputed domain name.
The evidence indicates that Respondent is using the disputed domain name in an attempt to intentionally attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or product or service on Respondent’s website.
The Panel finds that Respondent has registered and used the disputed domain name in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Lynda J. Zadra-Symes
Sole Panelist
Dated: July 14, 2011
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