The Complainant is Alstom of Levallois Perret, France, represented by Dreyfus & associés, France.
The Respondent is Telecom Tech Corp. of Panama City, Panama and Private Registration Cayman Islands, Overseas territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with Bargin Register Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2011. On September 30, 2011, the Center transmitted by email to Bargin Register Inc. a request for registrar verification in connection with the disputed domain name. After several reminders were sent from the Center, the registrar Bargin Register Inc. finally replied to the Center on October 26, 2011, sending its verification response by email confirming that the Policy applied to the disputed domain name and disclosing that the registrant and contact information for the disputed domain name differed from the named Respondent and the contact information in the Complaint. The Center sent an email communication to the Registrar on November 2, 2011 stating that in the light of the new registrant and contact information disclosed by the Registrar, the Center would send a notification of the Complaint and a written notice by hardcopy to the new registrant’s contact address.
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 October 21, 2011, in absence of a proper registrar verification and based on the relevant WhoIs of that day. In accordance with the Rules, paragraph 5(a), the due date for Response was November 10, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 11, 2011.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on November 23, 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
The Complainant, ALSTOM is a French industrial group that has diverse business interests including power generation, transmission and transportation. The Complainant uses the mark ALSTOM for its goods and services and has the following trademark registrations for its mark ALSTOM:
International Trademark No 931242, registered on March 1, 2007 for goods and services under classes 1,2,4,6,7,9, 11, 12,13, 16, 17, 19, 24, 35, 38, 39, 40, 41 42 and 45.
Community Trademark No. 00948729 filed on September 30, 1998 and registered on August 8, 2001 for goods and services in classes 1, 2, 4, 7, 9, 11, 12, 13, 16, 17, 19, 24, 35, 36, 37, 38, 39, 40, 41 and 42.
The Complainant owns the domain names , , and .
The disputed domain name was registered on May 4, 2010. 5. Parties’ Contentions A. Complainant
The Complainant states that it is a multinational company with a sales turnover of about twenty billion Euros in 2010/ 2011 and employs about ninety three thousand people in several countries. The Complainant avers it is a leader in integrated power plants, power production, transport infrastructure and air quality control systems. It is involved in mass transport projects for trains, tramways, metros, regional trains, high speed trains and states it has achieved the world rail speed record of 574.8 km/ hour on April 3, 2007. The Complainant mentions it acquired Areya T&D and added high voltage transmission to its business in 2010.
The Complainant states that its mark ALSTOM has a worldwide reputation and that ALSTOM is also its corporate name and its trade name. The disputed domain name imitates its mark and despite the inversion of the second and third letters of the mark it is visually and phonetically similar to its mark. The Complainant further states, it is a classic example of typo squatting and cites cases of misspellings amounting to typo squatting. The Complainant states that it had sent cease and desist letters to Respondent on October 4, 2010 and June 17, 2011 and subsequent letters thereafter but received no reply from the Respondent. Given the fame of its mark and the fact that its mark has no meaning, the Complainant argues that users are likely to associate the disputed domain name with the Complainant and find it confusingly similar to its mark.
The Complainant asserts that the Respondent has no rights and legitimate interests in the disputed domain name for the reasons that: the Respondent is not authorized to use the Complainant’s mark. As the disputed domain name is confusingly similar to the mark, no conceivable legitimate activity can be envisaged. The disputed domain name resolves to a parking page with pay per click links, which is not bona fide use. Further failure to respond to the communications sent to the Respondent is also a ground for finding lack of rights.
The Complainant asserts the Respondent registered the disputed domain name in bad faith as the mark is well known and does not have any meaning. The Respondent therefore ought to have known of the reputation of Complainant’s mark and registered the disputed domain name to take undue advantage of the goodwill of the mark. Even a simple Google search would have revealed the Complainant’s right in the name ALSTOM argues the Complainant. Further, the French links also shows the Respondent ought to know of the Complainant’s mark. The use of the disputed domain name to direct Internet users to a parking page with commercial links to derive revenue is bad faith use argues the Complainant. The Complainant states that the Respondent has shown a pattern of registering domain names using third party marks and cites cases in this regard. Given the notoriety of the mark, the Complainant contends that no good faith use of the disputed domain name is conceivable in the absence of any permission from the Complainant, the owner of mark. The Complainant finally argues that the Respondent’s pattern of opportunistic bad faith registrations, including use of privacy services to conceal its identity and not replying to the Complainant’s letters, all show the Respondent’s bad faith and requests for the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To obtain the remedy of transfer of the disputed domain name the Complainant has to establish three elements under paragraph 4(a):
(i) The disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights; and
(ii) The Respondent has no rights and legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith by the Respondent. A. Identical or Confusingly Similar
The first element under paragraph 4(a) of the Policy requires the Complainant to establish that the disputed domain name is identical or confusingly similar to a mark in which it has rights.
The Complainant has submitted evidence of its trademark registrations for its mark ALSTOM. In particular, the Complainant has provided details of its international trademark registration and its community trademark registration under several classes. The Complainant no doubt is the owner of the mark ALSTOM and the Panel finds the Complainant has established its rights in the mark ALSTOM in these proceedings.
The Panel finds the disputed domain name is confusingly similar to the mark despite the second and third letters being inter-changed. The inversion of letters of a trademark in a domain name is recognized as typo squatting, particularly where the overall impression of the mark is not changed See Costco Wholesale Membership Inc., Costco Wholesale Corporation v. Yong LiWIPO Case No. D2004-0296. (Where the domain name was found confusingly similar to the trademark COSTCO as it did not change the overall impression of the mark); also see Weightwatchers International Inc. v. Domain Proxy,WIPO Case No. D2007-0798 () where inversion of the second and third letters of the mark in the domain name was found confusingly similar to the WEIGHT WATCHERS mark.
Typo squatting is a deliberate attempt to attract or divert Internet users who make a common error or spelling mistake such as inversion of letters in their Internet search. In the present case the inversion of the letters of the ALSTOM mark, in the Panel view, makes the disputed domain name a typo-squatting variant of the mark, as the inversion of the letters does not bring about a significant change in the appearance of the mark and visually it does not diminish the likelihood of confusion with the mark. Transposing two consecutive letters of a trademark does not lessen the confusing similarity of the domain name with the trademark, see F.Hoffman-La Roche AG v. Shenhong / Lantian Gongsi, WIPO Case No. D2009-0535.
The Panel finds the Complainant has established the first element under paragraph 4(a) of the Policy that the disputed domain name is confusingly similar to the Complainant’s mark in which it has rights. B. Rights or Legitimate Interests
The Complainant has to put forward a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name under the second element of paragraph 4(a).
The Complainant’s case is that the Respondent is not authorized to use its mark or a variant of its mark. Further, the Respondent does not use the disputed domain name for any legitimate activity or for any bona fide purposes as the disputed domain name resolves to a parking page that features pay per click links. The use of the disputed domain name for redirecting Internet users based on the Complainant’s mark is evidence of cybersquatting and shows the Respondent’s lack of rights or legitimate interests under the circumstances of the case asserts the Complainant.
The Respondent has not responded in these proceedings and has not provided any material that challenges the Complainant’s contentions. The material on record shows the Respondent does not use the disputed domain name for any legitimate non-commercial or fair use purposes or that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent is not connected with the Complainant or its business. The disputed domain name, as discussed in the previous section is found to be a typo squatting variant of the Complainant’s mark and in the Panel’s view it is likely to mislead Internet users. A domain name that gives a false impression and misleads Internet users does not confer any rights or legitimate interests. See Pfizer Inc. v. Schreiner / Schreiner & Co.,WIPO Case No. D2004-0731.
The disputed domain name is found to resolve to parking page that features pay per click links and such use is not bona fide use of the disputed domain name. The use of the disputed domain name for redirecting Internet users based on others trademark to a parking page featuring pay per click links is not bona fide use of the disputed domain name. See mVisable Technologies, Inc. v. Navigation Catalyst Systems Inc.WIPO Case No. D2007-1141.
The Panel finds the Complainant has put forward a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name. As the Respondent has failed to assert any rights in the disputed domain name the Panel finds the Complainant has satisfied the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
The third element under paragraph 4(a) of the Policy requires the Complainant to prove the disputed domain name has been registered and is being used in bad faith.
The Complainant has argued that ALSTOM is a well-known mark internationally and the Respondent has registered a confusingly similar variant of its mark to obtain undue advantage from the goodwill associated with its mark. The Panel finds the Complainant has established in these proceedings that its mark is internationally renown and that the Complainant has adopted and used the mark for several years prior to the registration of the disputed domain name.
Given the fame of the Complainant’s mark and the fact that ALSTOM has no dictionary meaning, except as referring to the Complainant’s mark, it is the Panel’s view, that the use of a variant of the Complainant’s trademark in the disputed domain name gives rise to the inference that the Respondent ought to have registered the disputed domain name for its trademark value. See Roche Products Limited v. Health Info, Ivan Petrosyan / Oleksandr Mandryk,WIPO Case No. D2011-0782 or Bharti Airtel Limited, Body Corporate v. Ramandeep Singh, USA Webhost, Inc.WIPO Case No. D2010-0524, where bad faith registration and use was found when the Complainant’s trademark, a coined word, was used by the Respondent in a domain name for generating Internet traffic to derive commercial gain from the Complainant’s trademark.
The disputed domain name resolves to a parking page, and it is recognized that parking pages typically offer domain name holders who try to capitalize on the goodwill of a third party’s trademark, the opportunity to earn click through revenue by redirecting Internet users. See Sanofi Avantis v. Above .com domain Privacy / Transure Enterprise Ltd.,WIPO Case No. D2010-0426. The Panel also notes that the click through links are in French and therefore the domain name clearly targets a French audience, who are well acquainted with the Complainant’s mark. The Panel finds the Respondent has therefore registered the disputed domain name for the purpose of attracting Internet users by creating a like hood of confusion with the Complainant’s trademark as to the source, sponsorship, and affiliation of the website which is recognized as bad faith registration and use under paragraph 4(b)(iv) of the Policy. See Micro Electronics, Inc. v. J. Lee,WIPO Case No. D2005-0170, (Bad faith registration and use of the domain name was found where the respondent used the domain name to attract Internet users unwittingly to his site for commercial gain).
The Complainant has argued that the use of privacy protection services by the Respondent to hide its identity is yet another indication of the Respondent’s bad faith. In this Panel’s view, there are legitimate uses of privacy protection services and not all use of privacy services is necessarily in bad faith. However based on the totality of circumstances in a case, a panel has the discretion to make an adverse inference from the use of privacy services by a respondent. In the present case where the disputed domain name is found to be a typosquatting variant of a the mark in question and the disputed domain name resolves to a parking page with links in French, the Panel finds, on balance, that adverse inference can be drawn from the use of privacy services by the Respondent as the totality of facts here indicate bad faith registration and bad faith use of the disputed domain name by the Respondent.
The Panel finds the Complainant has satisfied the third element under paragraph 4(a) of the Policy, and has established that the Respondent has registered the disputed domain name in bad faith and demonstrated that it is being used 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 the Complainant.
Harini Narayanswamy
Sole Panelist
Dated: December 7, 2011
Full & Egal Universal Law Academy