The Complainant is Apple Inc. of Cupertino, California, United States of America, represented by Kilpatrick Townsend & Stockton LLP, United States of America.
The Respondent(s) is/are Fred Bergstrom, LottaCarlsson, Georges Chaloux and Marina Bianchi of Skanelan, Sweden; of Fjord, Norway; of Marseille, France; and of Lugano, Switzerland, respectively. 2. The Domain Names and Registrars
The disputed domain names , and are registered with IPNIC, Inc. The disputed domain name is registered with ELB Group Inc. Together the disputed domain names are hereinafter together referred to as the “Domain Names”. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 15, 2011. On August 16, 2011, the Center transmitted by email to IPNIC, Inc. and ELB Group Inc. a request for registrar verification in connection with the Domain Names. On August 16, 2011, IPNIC, INC., transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the disputed domain names ; and . ELB Group Inc. did not respond to the Center’s repeated requests for registrar verification in respect of the disputed domain name, .
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 September 19, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 9, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 13, 2011.
The Center appointed Tony Willoughby as the sole panelist in this matter on October 21, 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.
The complete failure of ELB Group Inc. to respond to the Center’s registrar verification request in respect of the disputed domain name , despite “chasers”, has been unhelpful. The Panel requests the Center to report the matter to ICANN if it has not already done so.
The Complaint names four different persons as Respondents, each identified as the registrant of one of the Domain Names; yet paragraph 3(c) of the Rules provides that “the complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.” The Complainant seeks to overcome this apparent obstacle either on the basis that the four names identified are aliases for one individual (i.e. it is one domain-name holder who has registered all the Domain Names, albeit under different names) or, if the named registrants are indeed four different people, they and/or the websites to which the Domain Names resolve (or have resolved) are all under the common control of a single entity. In relation to this latter point the Complainant refers to paragraph 10(e) of the Rules (“A Panel shall decide a request by a party to consolidate multiple domain name disputes in accordance with the Policy and the Rules”). Here, paragraph 4.16 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions Second Edition (“WIPO Overview 2.0”) is of help. Generally, the approach of panels has been to permit consolidation of such disputes where “the domain names or the websites to which they resolve are subject to common control, and the consolidation would be fair and equitable to all parties.”
To support its claim in this regard, the Complainant has conducted extensive investigations and produced to the Panel a wealth of material, including the following:
(a) screenshots from websites to which two of the Domain Names ( and ) resolve, demonstrating that they are substantially identical in format; moreover both websites made reference to a supposed affiliate, Software Store Ltd. of an address in Folsom Street, San Francisco;
(b) evidence to show that those websites are substantially identical to the website to which two other domain names resolved, namely and . These domain names were the subject of a case earlier this year, Apple Inc. v Algernon SaloisWIPO Case No. D2011-0413, and were ordered to be transferred to the Complainant;
(c) WhoIs search results to show that and were registered on the same day (May 22, 2011)a few days after notification of the decision in Apple Inc. v Algernon Salois, supra and pointing to the same name servers;
(d) the disputed domain name, , also points to those name servers, as did , but that domain name now points to other servers according to the InterNIC WhoIs database;
(e) online complaints from Internet users claiming that they had been or were nearly deceived by the websites connected to the disputed domain names, , and , believing the sites to be official sites of or authorised by the Complainant;
(f) evidence to show that there is no “Software Store Ltd.” registered at the Folsom Street address (supra.) or indeed anywhere else in San Francisco.
It is to be observed that none of the named registrants has elected to challenge the Complainant’s allegations.
On the basis of the evidence provided by the Complainant, the Panel concludes on the preponderance of that evidence that the Domain Names and the domain names the subject of Apple Inc. v Algernon Salois, supra are either the creation of one entity (identity unknown) or are under the common control of that entity. Either way, the Panel finds that the Complaint is properly formulated and treats the four named registrants as one (hereinafter referred to as the “Respondent”). The Panel is satisfied that in so doing the Panel is causing no disadvantage or unfairness to either party or any of the parties, as the case may be.
It has also been necessary in the particular circumstances of this case to extend the due date for Decision to that which is indicated under Paragraph 7 of the Decision, infra. 4. Factual Background
The Complainant is the proprietor of the APPLE brand of computers and related goods and services. It is a very well-known brand and protected by numerous trade mark registrations worldwide. The Complainant and its brand is well-known to the Respondent who has offered for sale online what purport to be the Complainant’s goods. The Respondent makes use of the Complainant’s well-known APPLE silhouette device mark on its websites and claims variously to be the “Best Mac Store” and an “Apple Premium Reseller”.
The Domain Names were registered on various dates in March, May and June 2011, two of them ( and ) having been registered on May 22, 2011, within a week of notification of the decision in Apple Inc. v. Algernon Salois, supra a case involving the domain names, and . As can be seen from section 3 above, the Complainant has asserted and the Panel has found, on the preponderance of the evidence, that “Algernon Salois”, the respondent in that case, and the four named registrants in this case are either one and the same or, if they are separate entities, are under the common control of a single entity.
At one time or another all the Domain Names have resolved to websites offering the Complainant’s products at vastly discounted prices. Whether those products are genuine or not (the Complainant suspects not) is not known, but for the purposes of this decision, the Panel need not go into the issue of whether or not they are genuine. The Respondent’s websites have also offered for sale what appear to be the products of a large number of the Complainant’s competitors.
The Respondent claims to be affiliated with “Software Store Ltd.”, a company said to have an address in Folsom Street, San Francisco. The evidence filed by the Complainant shows that that company does not exist at that address or indeed anywhere else in San Francisco. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Names are confusingly similar to its APPLE trade marks, that the Respondent has no rights or legitimate interest in respect of the Domain Names and that the Domain Names were registered and are being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names have been registered and are being used in bad faith. B. Identical or Confusingly Similar
Introduction
The Panel proposes to deal with this subject at some length, not because this case presents any particular difficulty, but because in the Panel’s view additional coverage of the topic from the perspective of those panels, such as the Panel, who believe that substance has to be given to the word “confusingly” in the expression “confusingly similar” is warranted. In the Panel’s view, such additional coverage may help to inform future consideration of the jurisprudence in this particular area.
The Panel’s perception of the Domain Names
The Domain Names comprise (i) the name or word “apple(s)” and (ii) one or more of the words, “big”, “discount”, “sales”, “store” and “well” and (iii) the generic “.com” domain suffix, which may be ignored for the purposes of assessing identity and confusing similarity under this head of the Policy.
None of the Domain Names is identical to any trade mark in which the Complainant claims rights, so the issue is whether they are confusingly similar to any trade mark in which the Complainant has rights. For this purpose, the Panel need only use the Complainant’s APPLE word mark as the basis for the comparison, a word or name which is present in each of the Domain Names.
Paragraph 1.2 of WIPO Overview 2.0 explains the nature of the test for confusing similarity, a key sentence reading: “The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion.”
Taking that sentence at face value the Panel’s personal assessment is that in the use of the word “apple” is clearly a reference to the Complainant’s brand, on the other hand the Panel would not expect the Complainant to be marketing its products under or by reference to such a domain name. As regards the Panel initially read this as “apples store well”. The Panel is aware of the Complainant’s APPLE Stores, but finds the addition of “well” an awkward addition and not an expression that one would expect the Complainant to use. More to the point, perhaps, it is within the Panel’s knowledge that apples do store well and therefore finds that Domain Name to be more evocative of the fruit than of the Complainant’s brand per se. As regards , it is not the kind of domain name that the Panel would expect the Complainant to use, but nonetheless the Panel sees it as a reference to the Complainant’s brand rather than the fruit, although it could be either. As for , for the Panel it reads more comfortably as “Apple’s sales”. Were it to be a reference to the fruit, the Panel would have expected to see “apple” in the singular and in that form it could equally be a reference to the Complainant’s brand. But again with this domain name the Panel would be mildly surprised to find that it was a domain name used by the Complainant.
In sum, the Panel doubts that he would have thought that any of the Domain Names was a domain name of the Complainant as such even though he would probably have recognised Apple in most of the Domain Names as being a reference to the Complainant’s brand. In other words, the Panel would not have been likely to be confused as to the Complainant’s association with any of the Domain Names, although as to at least two of them he might have asked himself the question before coming to that conclusion.
That is the Panel’s personal, subjective view, but in the view of this Panel “likelihood of Internet user confusion” must involve a broader basis for the assessment. At the heart of the matter is the interpretation of the term “confusingly similar” in paragraph 4(a)(i) of the Policy. What does it mean?
The Test for Confusing Similarity (“View 1”)
The Panel comes to the Policy as a trade mark lawyer with the knowledge that the Policy was devised in significant part1for the benefit of trade marks rights holders. The Panel is very familiar with the concept of confusing similarity, it being a concept peculiar to (if not exclusively associated with) trade mark law. From that perspective, the natural approach would be along the lines of a court applying the test in a trade mark infringement action, albeit in the context of a mere visual/aural comparison of name and mark.
This was how this Panel approached the issue in Asda Group Limited v. Paul Kilgour, WIPO Case No. D2002-0857, citing also t America Online, Inc. v. Jonathan Investments, Inc. and AOLLNEWS.COM,WIPO Case No. D2001-0918:
“What is meant by ‘confusingly similar’? In the view of the Panel, if the word ‘confusingly’ is to be given any meaning, the expression cannot equate to ‘similar’. The Panel construes ‘confusingly similar’ in this context to mean that the Domain Name, by reason of its similarity with the Complainant’s trade mark, is likely to lead to a substantial (i.e. not insignificant) level of confusion among Internet users.
What sort of confusion? A confusion in the minds of Internet users that the Domain Name is or may very well be a domain name belonging to the Complainant or licensed by the Complainant. This is consistent with the meaning of the term ‘confusingly similar’ in the trade mark context (which is appropriate in that the Policy is expressly designed to protect the legitimate interests of the trade mark owners) and the Panel can think of no other type of confusion that could be said to apply.”
The same question was posed more elegantly five years later by the panel in Sanofi-Aventis v. Jason Trevenio, WIPO Case No. D2007-0648:
“Is it likely that, because of the similarity between the domain name on the one hand and the Complainant’s trademark on the other hand, people will wonder whether the domain name is associated in some way with the Complainant?”
But is it the correct approach? Many panellists believe not.
The Test for Confusing Similarity (“View 2”)
In Sermo, Inc. v. CatalystMD, LLC, WIPO Case No. D2008-0647 the panel stated: “As prior panels also have recognized, the incorporation of a trademark in its entirety in a domain name is sufficient to establish that a domain name is identical or confusingly similar to the Complainant’s registered mark for purposes of the Policy. The addition of other terms in the domain name, even derogatory ones, does not affect a finding that the domain name is identical or confusingly similar to the complainant’s trademark for purposes of the Policy.” There the panel went on to say (in footnote 4): “It is an objective test that looks only at the mark and the domain name; it is not a subjective test that also looks at the mental reaction of Internet users to the domain name” (internal citations omitted).
This view has most recently been re-stated in the case of Advance Magazine Publishers Inc v. Pavel Dneprov, WIPO Case No. D2011-0771 where the three-member panel stated categorically and without qualification: “When a domain name wholly incorporates a complainant’s mark, it is sufficient to establish confusing similarity for purposes of the UDRP”. More usually, panels holding View 2 will acknowledge that the trade mark must be recognisable in the domain name. Thus in Advance Magazine Publishers Inc v. Arena International Inc., WIPO Case No. D2011-0203, another three-member panel stated the position to be: “the inclusion of a trade mark in the domain name, where the trade mark is recognizable within the domain name, is sufficient to satisfy the first element of the Policy”.2
Thus there are two differing views with one in effect calling for an assessment of likely Internet user confusion and the other rejecting any such assessment. What is the rationale behind View 2, this latter per se approach?
A panel sought to explain it in its decision in the early case of Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662, a case involving the domain name . In that case, the panel rejected the suggestion that any Internet user could believe that such a name would be thought by anyone to be a domain name of or authorized by the complainant, but nevertheless found that the domain name was confusingly similar to the complainant’s trade mark. The panel reasoned as follows:
“Nevertheless, the Panel understands the phrase ‘identical or confusingly similar’ to be greater than the sum of its parts. The Policy was adopted to prevent the extortionate behavior commonly known as ‘cybersquatting,’ in which parties registered domain names in which major trademark owners had a particular interest in order to extort money from those trademark owners. This describes Respondent’s behavior. Thus, the Panel concludes that a domain name is ‘identical or confusingly similar’ to a trademark for purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name. In other words, the issue under the first factor is not whether the domain name causes confusion as to source (a factor more appropriately considered in connection with the legitimacy of interest and bad faith factors), but instead whether the mark and domain name, when directly compared, have confusing similarity.”
This Panel’s problem with that explanation is that while it sets out what is not the test, it does not explain what is meant by “confusing” in this context. It is not, apparently, an assessment of the mental reaction of Internet users (see Sermo, Inc. v. CatalystMD, LLC, supra.), so where is the confusion to be found?
The panel in the case of Red Bull GmbH v. Carl Gamel,WIPO Case No. D2008-0253, adopts the same approach, but is no more informative when it comes to explaining the nature of the requisite confusion:
“The preferable view is that paragraph 4(a)(i) of the Policy does not depend on a strict application of trademark confusion theory. The ‘sucks’ cases are better regarded as examples of how the object of the Policy informs the meaning of confusing similarity under the Policy. Shoe-horning ‘sucks’ cases into a traditional trademark infringement analysis is unconstructive. The question is whether, in the abstract, which amongst other things means putting to one side the repute the trademark in question might enjoy, the domain name and the trademark have confusing similarity.”
Notable by its absence is any indication of what the panel in the above case understands by the term “confusing similarity” unless it is to render the word “confusing” devoid of all meaning. Indeed in dealing with the complainant’s argument that the domain name in issue, , was confusingly similar because some non-English speaking Internet users will not understand the meaning of sucks, the panel stated: “This Panel’s opinion is that, at this time, those people who have no appreciation of the pejorative nuance of the word ‘sucks’ form such an inappreciable part of the modern Internet audience that concern for their sensibilities should not be a factor in the assessment of confusing similarity under paragraph 4(a)(i) of the Policy.” In the Panel’s view, to put it neutrally, this represents an overly narrow assessment of the size of the non-English speaking part of the “modern Internet audience.”
In Research In Motion Limited v.One Star Global LLC, WIPO Case No. D2009-0227, the panel, which disavowed the per se approach on the basis that there is no hard and fast rule to that effect and that each case should be judged on its own merits, nonetheless observed that an advantage of a low threshold per se approach is that it enables abusive uses of non-confusing domain names to be dealt with under the second and third heads of the Policy:
“Take for example a,company that registers the domain name for a website that does nothing more than sell its own goods. In the opinion of this Panel the question of whether or not such use should be allowed is best addressed in the context of an assessment of rights or legitimate interests and bad faith. To interpret paragraph 4(a)(i) as setting a low threshold test permits this to happen.”
Pending a clearer statement from those advocating the per se approach as to what they understand by the word “confusingly “ in the term “confusingly similar” in paragraph 4(a)(i) of the Policy, it appears to this Panel that the interpretation may not be dictated by the literal meaning of the words in paragraph 4(a)(i) of the Policy, but rather by a desire to deal with egregious violations of trade mark owners’ trade mark rights, which involve the damaging use of similar domain names even if the similarity is not such as to be likely to lead to Internet user confusion.3
Questions of Policy interpretations aside, it is of course true that in some jurisdictions trade mark rights are not restricted to protection against confusingly similar marks or signs. In the European Union, for example, trade mark infringement may occur in certain circumstances where there is no risk of consumer confusion, yet the defendant is taking unfair advantage of the plaintiff’s trade mark. How broadly that applies across the world, the Panel does not know.
WIPO Overview 2.0
At this stage it is convenient to examine paragraphs 1.2 and 1.3 of the WIPO Overview 2.0.
These paragraphs suggest that the test for confusing similarity is different depending upon whether or not the domain name features negative or pejorative terms. According to paragraph 1.3, if the domain name features negative or pejorative terms, there is a consensus view; whereas if it does not, there is a divided view.
However, if one examines the so-called consensus view under paragraph 1.3, it seems to this Panel that that view is in fact a divided view and divided on similar lines to the views set out in paragraph 1.2, which reads:
“The first element of the UDRP serves essentially as a standing requirement. The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms [regarding the latter see further paragraph 1.3 below] typically being regarded as insufficient to prevent threshold Internet user confusion. Application of the confusing similarity test under the UDRP would typically involve a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name. While each case must be judged on its own merits, circumstances in which a trademark may not be recognizable as such within a domain name may include where the relied-upon mark corresponds to a common term or phrase, itself contained or subsumed within another common term or phrase in the domain name (e.g. trademark HEAT within domain name ).
However: Some panels have additionally required that, for a domain name to be regarded as confusingly similar to the complainant's trademark, there must be a risk that Internet users may actually believe there to be a real connection between the domain name and the complainant and/or its goods and services. Such panels would typically assess this risk having regard to such factors as the overall impression created by the domain name, the distinguishing value (if any) of any terms, letters or numbers in the domain name additional to the relied-upon mark, and whether an Internet user unfamiliar with any meaning of the disputed domain name seeking the complainant's goods or services on the world wide web would necessarily comprehend such distinguishing value vis-à-vis the relevant mark.
The applicable top-level suffix in the domain name (e.g., ".com") would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark. The content of a website (whether it is similar to or different from the business of a trademark holder) would usually be disregarded in the threshold assessment of risk of confusing similarity under the first element of the UDRP, although such content may be regarded as highly relevant to assessment of intent to create confusion (e.g., within a relevant market or language group) under subsequent UDRP elements (i.e., rights or legitimate interests and bad faith).”
Insofar as “confusing similarity” is concerned, the key points to note from this assessment of the decisions to date, appear to the Panel to be the following:
1. It is a straightforward visual or aural comparison between the trade mark and the domain name, and for this purpose the panel may ignore the generic domain suffix of the domain name.
2. For the purpose of this assessment, under paragraph 4(a)(i) of the Policy, the content of the website to which the domain name is connected will normally be ignored.
3. The purpose of the test is to determine whether or not Internet user confusion is likely.
4. For this purpose the trade mark must necessarily be recognizable as such within the domain name. The text says that this “would generally” need to be the case, but this Panel suggests that it must always be the case for there to be any likelihood of Internet user confusion.
5. The addition of other words (whether or not negative) is typically to be regarded as insufficient to prevent Internet user confusion. This is certainly borne out by the cases, but as will be seen below, the reasoning varies depending upon which of the two views the panellist holds.
6. Each case must be judged on its merits.
7. Some panels look for a risk that Internet users “may actually believe there to be a real connection between the domain name and the complainant and/or its goods and services”. In making this assessment these panels have regard to the overall impression of the domain name, the distinguishing value of any additional matter and whether or not Internet users seeking the complainant’s goods or services would necessarily understand the significance of any additional matter accompanying the trade mark. Inferentially, there are some panels who do not look for the risk of such a belief.
The “divide” between panellists could therefore be said to be the issue identified in point 7 above, although in this Panel’s view the heart of the divide is at point 3 above. The divide is between those panels who look for likelihood of some form of Internet user confusion and those who do not. Moreover, the use of the term “some panels” may be thought to be an indication that these panels do not form a substantial body of panellists.
Paragraph 1.3 of WIPO Overview 2.0 dealing with the addition of negative or pejorative terms reads as follows:
“Consensus view: Generally, a domain name consisting of a trademark and a negative or pejorative term (such as [trademark]) would be considered confusingly similar to the complainant's trademark for the purpose of satisfying the standing requirement under the first element of the UDRP (with the merits of such cases typically falling to be decided under subsequent elements). Panels have recognized that inclusion of a subsidiary word to the dominant feature of a mark at issue typically does not serve to obviate confusion for purposes of the UDRP's first element threshold requirement, and/or that there may be a particular risk of confusion among Internet users whose first language is not the language of the domain name [reference is also made to the discussion under paragraph 1.2 above].”
The “and/or” in the text of paragraph 1.3 of WIPO Overview 2.0 denotes the divide, though the Panel respectfully suggests that paragraphs 1.2 and 1.3 of WIPO Overview 2.0 could more expressly identify the nature of the divide,for example, by reference to points 3 and 7 above. While some panels look for a likelihood of confusion, others do not, merely the presence of the complainant’s trade mark. The Panel also suggests that when WIPO Overview 2.0 is next reviewed, consideration be given to having one paragraph (rather than two) dealing with the topic of confusing similarity.
In so saying, the Panel does not wish to be misunderstood. Those responsible for WIPO Overview 2.0 for whom the Panel has the greatest admiration, had an immense and difficult task facing them with a plethora of decisions representing work in over 20,000 cases and more than 200,000 pages of reasoning from more than 450 panellists from jurisdictions around the world. And having been involved in the panel consultation process which underpinned the production of this unique WIPO jurisprudential tool, this Panel well understands the challenge, as well as the enormous value such WIPO resource represents for UDRP stakeholders more generally. At the same time, many decisions continue to come into the body of case law, these do sometimes impact on particular areas of jurisprudence, and this Panel does hold views about this one particular section of the Overview which it finds useful to review and record here. This Panel's present analysis has had the benefit of the most recent decisions and is, in any event, a personal analysis, which may not be generally accepted.
More View 1 cases
There is a perception among some panellists that View 1 is a minority view only espoused by a few panellists in the early days of the Policy. In this Panel’s assessment, that is not the case. Here follow a few cases demonstrating the extent to which View 1 is supported. It will be seen that there are certainly differences of view as to what does and what does not constitute confusing similarity, but in all these cases the panel is looking for likelihood of some form of Internet user confusion.
In Direct Line Insurance plc & ors. v. Warren Snook, WIPO Case No. D2002-0870, the panel stated: “For confusing similarity to exist between a domain name and a trademark, there must be evidence that some section of the public has been or is likely to be confused into believing that the domain name is in some way linked with the business or goods of the owner of the trademark.”
In Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp., WIPO Case No. D2010-1404, the panel found that: “Internet users would expect the combination of Complainant’s well-known mark and the geographic identifier “Las Vegas” to refer to real estate properties and/or casino services provided by the Complainant.”
In Prime Pictures LLC v. DigiM L.P.,WIPO Case No. D2010-1877, the three-member panel stated: “The Panel considers that a significant number of customers and potential customers of cinemas operating under this mark would be liable to assume that the Domain Name locates a website of their owner or operator”.
In Nilfisk-Advance A/S v. Sezgin Hazangil Isi ve Makina Sanltdsti CID102906, WIPO Case No. D2011-0028, the panel concluded: “On the contrary, the full inclusion of the Complainant’s trademark in combination with these generic terms in the Turkish language may even enhance the false impression that any offered product or service under the disputed domain names are somehow officially linked to the Nilfisk-Advance Group.”
In Proskauer Rose LLP v. Leslie Turner,WIPO Case No. D2011-0675, the three-member panel in considering the domain name had this to say: “The addition of this descriptive term [“law firm”] does not diminish the confusing similarity between the mark and the domain name. If anything, the term “law firm” reinforces the confusing similarity, since the Complainant is a law firm.”
In Starwood Hotels & Resorts Worldwide Inc., et al v. Unister GmbH, Daniel Kirchhof, WIPO Case No. D2011-0781, the panel opined: “While the letter W is first appearing in the disputed domain names and separated by a hyphen, there is insufficient evidence to conclude that Internet users might particularly associate the letter W in these contexts with the Complainant.”
The other side of this coin is that if the domain name in issue comprises the complainant’s trade mark in combination with other matter which militates against any risk of confusion, the domain name will not be found to be confusingly similar to the complainant’s trade mark. Accordingly, as pointed out in paragraph 1.2 of WIPO Overview 2.0, if the trade mark is HEAT and the domain name is , it is most unlikely that a panel will find the domain name to be confusingly similar. The trade mark is “lost” in the domain name. However, the issue crops up more commonly where the domain name is accompanied by another word or words. For those panellists who adopt the trade mark infringement type approach “when a domain name is registered which is a well-known trade mark in combination with another word, the nature of the other word will largely determine the confusing similarity.” Yellow Corporation v. MIC, WIPO Case No. D2003-0748.
Thus in Lockheed Martin Corporation v. Dan Parisi, WIPO Case No. D2000-1015, () the three member panel was divided on the issue, but the majority held that: “Both common sense and a reading of the plain language of the Policy support the view that a domain name combining a trademark with the word “sucks” or other language clearly indicating that the domain name is not affiliated with the trade mark owner cannot be considered confusingly similar to the trademark.”
In America Online, Inc v. Johuathan Investments Inc., AOLNEWS.COM, WIPO Case No. D2001-0918, a case involving inter alia the domain name this Panel regarded it as, “inconceivable that anyone looking at this Domain Name will believe that it has anything to do with a company of such high repute as the Complainant. It is manifestly, on its face, a name, which, by its very nature, declares that it is hostile to Netscape.”
In Sanofi-Aventis v. Jason Trevenio, supra, one of the domain names held not to be confusingly similar on the basis that Internet users would not be wondering whether it might be associated with the trade mark owner was .
However, the “other” word does not necessarily need to be a negative or pejorative word. It could be a word, which for some other reason renders Internet user confusion unlikely. Thus in Hoffmann-La Roche Inc. v. Mikhail Pavlishin, WIPO Case No. D2010-0998, the Complainant’s trade mark was ACCUTANE and the domain name in issue was . Having cited with approval an extract from Research In Motion Limited v. One Star Global LLC, WIPO Case No. D2009-0227, to the effect that there is no hard and fast rule (“each case must be judged on its own merits and the assessment will always depend on the specific mark and the specific domain name”), the panel concluded that few Internet users who know English will be likely to be wondering whether the complainant was promoting sales of a generic version of its branded drug. There, the panel also observed that the structure of the domain name was such as to reduce the impact of the trade mark. Research In Motion Limited v. One Star Global LLC, cites Institut Straumann AG v. Core-Vent Corporation, WIPO Case No. D2000-0404, which quotes from the English textbook, Kerly’s Law of Trade Marks (12th edition) to the effect that it is widely accepted internationally that the first syllable of a word mark is of most importance and that there is a “tendency of persons using the English language to slur the termination words”. The panel there opines that people tend to overlook the final part of complex multi-syllable expressions.
Nonetheless, other panels, while adopting the same trade mark infringement type test for “confusing similarity”, have found confusing similarity on the basis that not all Internet users have English as their first language and while recognizing the trade mark in the domain name in issue will not necessarily understand the negative effect of the accompanying word or words. The point was well made recently when someone suggested to the Panel, a non-German speaker, that he might well find “kodakichhasse” confusingly similar to KODAK even though the added matter means “I hate”.
In Bayer A.G. v. Dango s& Partners, WIPO Case No. D2002-1115 the panel states that: “Furthermore, Internet users are not always fluent in English or at least not sufficiently fluent to perceive that the term "sucks" is used to denigrate, criticize and disparage, and that it is therefore a pejorative term, which should immediately disassociate the domain name to which it is appended from the Complainant’s trademark forming part of the domain name.”
In Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465 the panel states that: “As explained in the Complaint, Complainant’s core business is teaching English to customers who do not speak it. Accordingly, Complainant contends that many of its customers (and potential customers) are "presumptively incapable of appreciating the nuances of American slang." This plausible factual assertion by Complainant is unrebutted by Respondent, and accordingly is credited by the panel.”
In Société Air France v. MSA, Inc., WIPO Case No. D2005-0168the panel states: “This Panel, however, concurs with the notion that every case must be assessed on its own merits, and the Panel agrees with the remarks by the Complainant, and which has also been stated in previous decisions under the UDRP, that far from all international customers are familiar with the pejorative nature of the term ‘sucks’, and that a large proportion of internet users therefore are likely to be confused by ‘-sucks’ domain names.”
In Deutsche Telekom AG v. AdImagination, WIPO Case No. DWS2006-0001the panel states: “The Panel refers to one WIPO Case in which the Panel reasoned that ‘not all internet users are English speakers or familiar with the use of ‘sucks’ to indicate a site used for denigration or criticisms. (See The Royal Bank of Scotland Group plc, National Westminster Bank plc A/K/A NetWest Bank v. Personal and Pedro Lopez, WIPO Case No. D2003-0166). The Panel agrees with the aforementioned decision and others which have concluded that confusing similarity exists in such instances.”
In Southern California Regional Rail Authority v. Robert Arkow,WIPO Case No. D2008-0430 the panel states:
“However, it is not self-evident that Internet users would always take notice of the slang word following the trademark in the Domain Name and recognize its negative import. Moreover, as in a number of other Policy proceedings, many Internet users potentially interested in the Complainant’s services are not fluent English-speakers. The record establishes that the Complainant’s METROLINK system serves ethnically diverse counties in Southern California and attracts tourists and business travelers from around the world. See, e.g., Wachovia Corporation v. Alton Flanders,WIPO Case No. D2003-0596; Koninklijke Philips Electronics N.V. v. In Seo Kim, WIPO Case No. D2001-1195 (non-native English speakers may not recognize the negative connotations of a pejorative slang term included in a domain name). It is also by no means improbable that a trademark holder would use a domain name with such a suffix wryly, perhaps deliberately seeking an opportunity to communicate with younger or disaffected consumers.”
In this last case the panel is suggesting that trade mark owners may deliberately register such names in order “to communicate with younger or disaffected consumers.” This Panel is not aware of that practice, but is aware that some trade mark owners register such domain names to obviate the trouble and expense associated with recovering them from a prior registrant. However, this practice of some trade mark owners is unlikely to be general public knowledge. Still, less is it likely that those trade mark owners would use such domain names to promote their products.
Another basis for finding likelihood of confusion in these cases has been that Internet users will reach the websites connected to the domain names as a result of the action of search engines:
“By using Complainant’s marks in its domain names respondent makes it likely that Internet users entering [Complainant’s trade mark] into a search engine will find [the site connected to the domain name] in addition to the Complainant’s site … Respondent’s domain name is sufficiently similar to Complainant’s marks that the search engine results will confusingly list the Respondent’s domain name when searching for the Complainant’s mark.” (Cabela’s Incorporated v. Cupcake Patrol,NAF Claim No. FA95080)4.
In this Panel’s view, this is no indication that the Internet user is confused, merely that the search engine has recognized the trade mark in the domain name. True it is that the Respondent may be deriving an unfair benefit on the back of the Complainant’s trade mark, but not because any Internet user has been confused by the domain name.
There have been some cases where for other reasons confusing similarity has been found notwithstanding a negative addition to the Complainant’s trade mark. In Microsoft Corporation v. S.L. Mediaweb, WIPO Case No. D2003-0538 (), the Panel thought that some Internet users might view the domain name to be an appropriate one to cover the Complainant’s services which included dating services and sex advice. A similar line was taken in Academy of Motion Picture Arts and Sciences v. Chego Nado, WIPO Case No. D2003-0541 (). In both cases the panelists were assessing Internet user perception. The panelist in the former case addressed the issue, comparing the likely reaction of the experienced Internet user (not likely to be confused) and the inexperienced Internet user (likely to be confused):
“The general rules as set forth above are easily applicable to domain names combining a trademark and a generic denomination correlating to services or products of the trademark holder (such as Microsoft Corporation v Momm AmedIa,WIPO Case No. D2001-1454, , or Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil,WIPO Case No. D2000-1409 relating to and several other domain names incorporating the SONY trademark and a generic description). While the link between the trademark holder’s services and the domain name is still readily imaginable in cases such as (WIPO Case No. D2003-0541) or (WIPO Case No. D2000-0102), the Panel believes that a connection between the Complainant’s MSN services and pornographic content would not easily be made by an experienced Internet user. One might argue that the more experienced Internet users, taking into account the Complainant’s product range and its general impression among Internet users as the largest and most well-known software provider, might not expect the Complainant to offer pornographic content on one of its websites. Therefore, such users might not be confused as to the similarity of the Domain Name to Complainant’s trademark.
There certainly exists, however, a danger of confusion with the less experienced part of the Internet community as to the association and origins of the Domain Name. Such users, taking into account the large range of services provided by the Complainant, might very well take the Domain Name for a website of the Complainant, in particular if the Respondent’s website is found among others in the result list of a search engine request for the MSN services of the Complainant. Moreover, considering that the Complainant offers dating services and sex advice, inter alia, on its MSN websites, a danger of confusing similarity of the Domain Name to the MSN websites and the MSN trademark might very well exist, at least initially, for the more experienced Internet users.”
In A & F Trade Mark Inc. and Abercrombie & Fitch Stores Inc., WIPO Case No. D2001-0900, () confusing similarity was found on a similar basis, namely Internet users being unlikely to recognize the significance of the concluding part of the complex domain name in issue.
As is apparent from the citations supra a significant proportion of the cases involving domain names comprising the trade mark and other matter not conducive to a finding of confusing similarity, but where confusing similarity has nonetheless been found, have been cases where the panelist has taken into account the fact that some Internet users, not familiar with the English language, will not appreciate the negative significance of the added matter. That is not a matter of concern to those holding View 2 because for them the presence of the trade mark is enough. For View 1 panelists, where is the line to be drawn? Are all such domain names confusingly similar on the basis that there are hundreds of millions of non-English speaking Internet users around the world? Or is it appropriate for a panelist to look at the parties’ respective audiences to see whether confusion is in fact a realistic possibility? In Asda Group Limited v. Paul Kilgour, supra., this Panel looked at both parties’ websites and found them to be directed solely to English speaking audiences. At that date it was most unlikely that many non-English speakers would have heard of the complainant and certainly no visitor to the respondent’s website other than one familiar with the English language would have made any sense of it. But was it appropriate for the Panel to have done so?
A very recent case which is of interest in relation to both the meaning of “confusingly similar” and the issue as to whether or not the content of the respondent’s website is relevant to the assessment under paragraph 4(a)(i) of the Policy is Société pour l'Oeuvre et la Mémoired'Antoine de Saint Exupéry, Succession Saint Exupéry-d'Agay v. il piccolo principe di laurora rossella Ditta Individuale,WIPO Case No. D2011-1497. There the panel was assessing whether or not the domain name in issue, , was confusingly similar to the trade mark LE PETIT PRINCE. This is what the panel had to say:
“The novel "Le Petit Prince" of Antoine de Saint Exupery is known worldwide. Not only its title in French but also its title in Italian is very famous. People usually make a connection with this novel as soon as they hear the words "petit prince" or "piccolo principe". It is evident to the Panel that the Respondent also makes this connection when it uses sentences of the novel on its website. In addition, there is as visual and phonetic similarity between "Le Petit Prince" and "Il Piccolo Principe". It was already recognized in various decisions that a trademark and a domain name containing word elements of different languages have a semantic similarity when a considerable part of the public understands the meaning of the translation (see e.g. Compagnie Générale Des Etablissements Michelin – Michelin & Cie v. Graeme Foster,WIPO Case No. D2004-0279; Société pour l'Oeuvreet la Mémoire d'Antoine de Saint Exupéry – Succession Saint Exupéry – D'Agay v. Perlegos Properties,WIPO Case No. D2005-1085). In the present case, it is clear that the main part of the Internet users will make an association with the Complainant's trademark LE PETIT PRINCE when typing in the disputed domain name. In addition, it has to be noted that a confusingly similarity between the Complainant's trademark and the domain name is not contested by the Respondent.
The Panel is therefore convinced that the disputed domain name is confusingly similar to the Complainant's trademark.”
The panel in that case talks of a visual and aural similarity, but this may not be as obvious to those who are not bi-lingual in French and Italian. The visual and aural similarity must surely stem from the fact that the domain name is a translation of the trade mark. This Panel wonders how many non-Italian speakers would recognize the complainant’s trade mark in the domain name. In so saying, this Panel is not seeking to criticize the basis for the decision; indeed, this Panel can see the force in a translation being found in certain circumstances to be “confusingly similar” for that reason alone. However, that is a finding, which can only readily be made in cases like this one by taking into account Internet user perception i.e. View 1. This Panel suggests that if one adopts“a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name” as suggested in paragraph 1.2 of the WIPO Overview 2.0, a finding of confusing similarity is far from straightforward.
Content of respondents’ websites
The general rule is that, as indicated in paragraph 1.2 of the WIPO Overview 2.0, one does not consider the respondent’s website when assessing confusing similarity for the purposes of paragraph 4(a)(i) of the Policy. Given the content of the Respondent’s websites in this case (see below, and sections 3 and 4 above) this could be a matter of material significance if the Panel were to conclude that any of the Domain Names is not confusingly similar to the Complainant’s APPLE trade mark, as exemplified by the following case.
In Starwood Hotels & Resorts Worldwide Inc., et al v. Unister GmbH, Daniel Kirchhof, supra., the panel declined to look at the use being made of the domain names for the purposes of paragraph 4(a)(i) of the Policy and found (on the basis of View 1) that the domain names were not confusingly similar to the complainant’s trade mark, but he then went on to state later on in his decision: “The content of the Respondent’s websites strongly suggest that the Respondent was motivated to register the disputed domain names in an attempt to exploit confusion with the Complainant’s marks.” Evidently, the panel did not believe that the respondent had made his domain names sufficiently confusingly similar for his bad faith intent to bear fruit. On the other hand, the panel in that case might reasonably have concluded that it was not for him to assume in favour of the respondent that his bad faith intent would fail in its objective.
A different approach was undertaken by the panel in RapidShare AG v. majeed randi, WIPO Case No. D2010-1089. There, the panel accepted the force of the general rule as set out in paragraph 1.2 of the preceding version of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, but went on, “[h]owever, that does not mean that the content of the website cannot in some cases provide a pointer as to how Internet users will perceive a domain name that in turn might inform the relevant comparison.”
This Panel suggests that as paragraph 1.2 of WIPO Overview 2.0 reminds us, each case is to be assessed on its own merits. For the Panel, there will always be cases (such as Asda Group Limited v. Paul Kilgour, supra and Société pour l'Oeuvre et la Mémoired'Antoine de Saint Exupéry, Succession Saint Exupéry-d'Agay v. il piccolo principe di laurora rossella Ditta Individuale supra) where it may be appropriate to take into account other circumstances including the respondent’s website).
The Case at Hand
In assessing whether it was appropriate to deal with this complaint against four named respondents as one, it was necessary for the Panel to look at the Complainant’s evidence as to the format of the Respondent’s websites (see sections 3 and 4 above). They have all at one time or another effectively represented themselves to be the sites of authorized re-sellers of the Complainant’s goods. By using the word or name “apple” in the Domain Names the Respondent has clearly anticipated that visitors to its websites will be looking for the Complainant’s products. In such circumstances it would be somewhat absurd for the Panel to ignore that fact and assume in the Respondent’s favor that the Respondent had failed in its objective.
However, it is unnecessary for the Panel to decide this issue on the basis of the content of the Respondent’s websites. While the Panel would not himself have assumed that all the Domain Names were domain names of or associated with the Complainant, the Panel is satisfied that Internet users around the world (and in substantial numbers) will not have analyzed the Domain Names in the same detail and/or in the same manner, but will have recognized the word “apple” in each of them simply as APPLE, the brand. Moreover, the Panel is also of the view that there is nothing about the additional matter in the Domain Names that will necessarily alert those Internet users that the Domain Names may not be domain names of or associated with the Complainant.
The Panel remains of the view that panellists should keep an open mind, that each case should be judged on its merits, but that View 1 is, for him, the natural approach, assessing likelihood of confusion on the basis of a “subjective test that looks at the mental reaction of Internet users to the domain name.” In the view of the Panel this is the only way in which substance can be given to the term “confusingly similar” in paragraph 4(a)(i) of the Policy. In so concluding, the Panel recognises that this may provide a loophole for those making abusive use of domain names, which are not confusingly similar to the Complainant’s trade mark; just as the traditional view of the conjunctive requirement in paragraph 4(a)(iii) of the Policy provides a loophole for those making abusive use of a domain name following a good faith registration of the domain name. The Policy is not designed to catch all abusive uses of domain names.
It will be noted from the View 1 cases quoted above that the relevant confusion has been described in a number of ways ranging from a likely belief that the domain name is in some way associated with the complainant, to an assumption that that is the case, to a wondering whether or not it might be the case. The Panel agrees with the panel in Sanofi-Aventis v. Jason Trevenio, supr.,that calling for a “belief” is too strong, thereby rendering the test one of “deception” rather than “confusion”. The Panel is of the view that merely causing Internet users to wonder whether the domain name is associated with the complainant is confusion enough.
The Panel finds that the Domain Names are confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
Paragraph 2.1 of WIPO Overview 2.0 provides as follows:
“Is the complainant required to prove that the respondent lacks rights or legitimate interests in the domain name?
Consensus view: While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP. If the respondent does come forward with some allegations or evidence of relevant rights or legitimate interest, the panel then weighs all the evidence, with the burden of proof always remaining on the complainant.”
In this case, as indicated in sections 3 and 4 above, the Complainant has satisfied the Panel that the Respondent is and/or has been using the Domain Names and other domain names featuring the Complainant’s APPLE trade mark in combination with other words in order to sell online not only the products of the Complainant, but also the products of many others, including competitors of the Complainant.
In certain circumstances it may be permissible for a reseller to adopt a domain name featuring the brand name of the product being re-sold. It will clearly be permissible, for example, where the trade mark owner has given permission.
Paragraph 2.3 of the WIPO Overview 2.0 reads:
“Can a reseller/distributor of trademarked goods or services have rights or legitimate interests in a domain name which contains such trademark?
Consensus view: Normally, a reseller or distributor can be making a bona fide offering of goods and services and thus have a legitimate interest in the domain name if its use meets certain requirements. These requirements normally include the actual offering of goods and services at issue, the use of the site to sell only the trademarked goods, and the site's accurately and prominently disclosing the registrant's relationship with the trademark holder. The respondent must also not try to "corner the market" in domain names that reflect the trademark. Many panels subscribing to this view have also found that not only authorized but also unauthorized resellers may fall within such Oki Data principles. Pay-per-click (PPC) websites would not normally fall within such principles where such websites seek to take unfair advantage of the value of the trademark.”
In this case, and cross-referencing the facts with the Oki Data principles5, the Panel finds as follows:
1. Is the Respondent selling the Complainant’s goods? The Complainant contends that the goods in question are likely to be counterfeit, pirated or bootlegged. The Panel accepts that the circumstances are suspicious, but for the purposes of this decision, does not need to decide the issue of whether the goods in question may be genuine.
2. Are the Respondent’s sites being used exclusively for the purpose of selling the Complainant’s goods? No, the goods of many other manufacturers are being offered for sale through the sites to which the Domain Names resolve or have resolved.
3. Do the Respondent’s sites accurately state the Respondent’s relationship with the Complainant? No, they give the impression, contrary to fact, that the Respondent is an authorized re-seller.
4. Is the Respondent seeking to “corner the market” in domain names that reflect the Complainant’s trade mark? Cornering that market is likely to be an impossibility, but it is certainly true that the Respondent has sought to register a large number of such names. Six such names have been identified to date.
Thus, the Respondent fails to meet at least two of the Oki Data principles and has not sought to persuade the Panel that it has any relevant rights or legitimate interests; nor can the Panel conceive of any basis upon which the Respondent might be said to have relevant rights or legitimate interests in respect of the Domain Names.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names. D. Registered and Used in Bad Faith
The evidence put forward by the Complainant overwhelmingly supports the Complainant’s contention that the Respondent’s purpose in registering the Domain Names was to free-ride on the back of the Complainant’s well-known trade mark for the purpose of selling a variety of branded products, some of them featuring the Complainant’s brand, but many featuring the brands of others including the brands of competitors of the Complainant. That of itself is enough to constitute bad faith registration and use for the purposes of paragraph 4(b)(iv) of the Policy. The clear intention is that Internet users will be sucked in by the use of the Complainant’s trade mark for the purpose of selling not just the Complainant’s goods, but also those of the Complainant’s competitors.
In addition, however, the Respondent falsely claims to be a “Premium Apple Reseller” and identifies its underlying affiliate organisation by reference to a false address. The impression intended to be given is that the Respondent is a reliable, traceable source for the goods that it is selling, whereas the reverse is the truth.
The Panel finds that the Domain Names were registered and are being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy. 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 Domain Names, , , and , be transferred to the Complainant.
Tony Willoughby
Sole Panelist
Dated: December 21, 2011
1 As can be seen from paragraph 4(a)(i) of the Policy only those with rights in trade marks or service marks can meet the first element of the Policy.
2 This was said to be a reflection of paragraph 1.2 of WIPO Overview 2.0. However, that is not how the WIPO Overview 2.0 puts it. The WIPO Overview 2.0 says that the addition of other words to the trade mark “typically being regarded as insufficient to prevent internet confusion”(emphasis added). It goes on to say that each case must be judged on its own merits. Another oddity about this decision is that in the very same paragraph, where this per se test is articulated the panel quotes with approval the following passage from the decision in Playboy Enterprises International, Inc v. John Taxiarchos, WIPO Case No. D2006-0561 (in turn quoting from Yellow Corporation v. MIC, WIPO Case No. D2003-0748): “when a domain name is registered which is a well-known trade mark in combination with another word, the nature of the other word will largely determine the confusing similarity”, which would seem to run counter to the per se approach. One would have thought that for those advocating the per se approach the determinative factor should be the trade mark rather than the other word, but there it is.
3 In somewhat analogous fashion to the debates which are currently running over whether “and” in paragraph 4(a)(iii) of the Policy can in certain circumstances mean “or” and whether the word “registered” in the same paragraph can include “renewed”, the tension between the divided views lies in the wording of the Policy on the one hand, and on the other hand, the natural desire on the part of panellists to give relief to complainants where domain name registrants are taking unfair advantage of the former’s trade marks.
4 See also Bayer Aktiengesellschaft v. Dangos & Partners, WIPO Case No. D2002-1115.
5 Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903.
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