The Complainant is P, Inc. of Denver, Colorado, United States of America, represented by Stack McKinney Law Group, United States of America.
The Respondent is Vindo International Ltd. of Victoria, Mahe, Seychelles. 2. The Domain Names and Registrar
The disputed domain names and are registered with Paknic (Private) Limited. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 11, 2012. On January 12, 2012, the Center transmitted by email to Paknic (Private) Limited. a request for registrar verification in connection with the disputed domain names. On January 27, 2012, Paknic (Private) Limited 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 January 30, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 19, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 20, 2012.
The Center appointed Gunnar Karnell as the sole panelist in this matter on February 24, 2012. 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 disputed domain name was created on November 5, 2010, and the disputed domain name was created on June 4, 2011.
The Complainant has requested that both disputed domain names be transferred to the Complainant.
The Complainant uses its trademark PHOTOBUCKET in association with an on-line image storing, editing and sharing service accessed through its website located at “www.p”. The Complainant’s website was registered on May 8, 2003, through which the Complainant has owned and operated it continuously since then. The Complainant maintains that it has common law rights in the mark PHOTOBUCKET dating back to the registration of the domain name
in 2003. However, the Complainant also owns, maintains, and it infers in evidence of rights to trademarks in support of its claims, two United States trademark registrations for the word mark PHOTOBUCKET, No. 3279875, registered on August 14, 2007 and No. 3242446, of February 27, 2007, as well as a number of trademark registrations in many other jurisdictions predating the registration of the disputed domain names.
The Complainant’s service is described in detail in its” Terms of Use”, available at “www.p/terms”, as last revised September 22, 2011. 5. Parties’ Contentions A. Complainant
The disputed domain names contain the Complainant’s trademark PHOTOBUCKET, merely adding the generic, non-descriptive word “blaster”.
The Respondent registered and it uses in bad faith its nearly identical domain names without permission in screen shots and in text. Its software is called “Photobucket Blaster”.
The Respondent is not commonly known by its domain names, only used for its software product. It has no rights to the mark PHOTOBUCKET. The Respondent’s use of the disputed domain names is not a bona fide offering of goods or services. The sole purpose and only function of the Respondent’s software offering is to allow, by technical means, the Complainant’s users to create multiple accounts in violation of the Complainant’s Terms of Use. The Respondent’s software product is a technological means of registering for and acquiring such multiple use accounts in violation of the Terms of Use in a manner not authorized or licensed by the Complainant. The Respondent uses its domain names to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion about a Complainant’s sponsorship or affiliation with the Respondent’s website and product. The Respondent’s website, taken as a whole, looks as if it is endorsed or affiliated with the Complainant’s. The Respondent, seeking commercial gain by selling its software, is not making any legitimate non commercial or fair use of its domain names, in which it lacks any rights or legitimate interests.
The Respondent’s website and software product are completely dependent on the Complainant’s website. Through its websites at the disputed domain names the Respondent offers for sale and sells software for US$ 99 per download. Without the Complainant’s web site, the Respondent would not have any product or service to offer. The disputed domain names simply would not exist without it. The Respondent must have had complete knowledge of the Complainant’s PHOTOBUCKET mark at the registration of the disputed domain names. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The factual foundation of the Complainant’s contentions, as presented by the Complainant, while supporting its non contradicted request for transfer of the disputed domain names by written evidence and ample reference to earlier UDRP case decisions, leads the Panel to the following conclusions. A. Identical or Confusingly Similar
The disputed domain names both contain the Complainant’s entire trademark PHOTOBUCKET. Added to it is the word “blaster”, a non-descript word of obscure meaning in its connection with the trademark, were it not to imply an explosive aggressiveness against what the trademark verbally may be envisaged to relate to. If so interpreted, the supplementary character of the word “blaster” would only add to the distinctive effect of the trademark PHOTOBUCKET within the combination of words. It does not obviate the confusing similarity of the disputed domain names to the trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interest in respect of the disputed domain names and there has been no rebuttal by the Respondent. Nothing on the record gives reason to believe that the Respondent has or has had any rights or legitimate interests in respect of the disputed domain names. C. Registered and Used in Bad Faith
In this Panel’s view, there is no indication on the record that might impair the Complainant’s assertions regarding the facts leading up to its conclusions that the disputed domain names and have been registered and used in bad faith. The Panel concludes that the Respondent has registered and used the disputed domain names in bad faith.
In light of the above, the Panel confirms that the conditions for transfer of the disputed domain names to the Complainant are satisfied. 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 names and be transferred to the Complainant.
Gunnar Karnell
Sole Panelist
Dated: March 3, 2012
Full & Egal Universal Law Academy