The Complainant is International Business Machines Corporation of Armonk, New York, United States of America, represented internally.
The Respondent is Hulmiho Ukolen of Helsinki, Finland / Domain Admin of Prague, Czech Republic. 2. The Domain Name and Registrar
The disputed domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD dba HebeiD (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 25, 2015. On February 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 3, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 11, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on March 18, 2015.
On March 11, 2015, the Center sent an email communication to the parties in both Finnish and English regarding the language of the proceeding. On March 13, 2015, the Complainant requested that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amendment to 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 proceeding commenced on March 30, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 19, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 20, 2015.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on April 28, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is the owner of the trademark IBM, which has been registered in 170 countries and used for technology-related products since 1924. The disputed domain name was registered on April 10, 2004. 5. Parties’ Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant’s trademark, because it consists of the Complainant’s trademark followed by the generic word “jobs”. This creates a likelihood of confusion in that it is associated with IBM and affiliated with obtaining a job at IBM or communicating with the IBM Human Resources Department.
The Respondent has no rights or legitimate interests in the disputed domain name, because it has not been licensed or otherwise permitted to use the IBM trademark by the Complainant.
The Complainant’s trademark is well-known around the world and the Respondent must have been aware of it when registering the disputed domain name. The Respondent is also actively using the disputed domain name for commercial gain as it is used to attract visitors to its website and increasing traffic with the IBM mark. The disputed domain name resolves to a website that has pay-per-click advertisements and generating more traffic will result in more money for the Respondent.
The Respondent is also offering the disputed domain name for sale for USD 4,750. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to obtain the transfer of a domain name, a complainant must prove the three Policy elements, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith. A. Language of the proceedings
The language of the proceeding is the language of the registration agreement, unless both parties agree otherwise, or the panel determines otherwise under paragraph 11 of the Rules. In this case, the language of the registration agreement is Finnish. As specified above, the Complainant has requested English be the language of the proceeding. According to the Complainant, the Registrar’s website and the website at the disputed domain name are in English and therefore the Complaint has been submitted in English.
The Respondent has not contradicted these statements and has not objected for English to be the language of the proceeding. Accordingly, the Panel determines in this case that the language of the proceedings shall be English. B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The Complainant has shown that it has registered the trademark IBM in a number of jurisdictions. The Panel also agrees with previous UDRP Panels, that the trademark IBM is a well-known trademark around the world, see e.g. Physik Instrumente GmbH & Co. v. Stefan Kerner and Jeremy Kerner and Magic Moments Design Limited,WIPO Case No. D2000-1001.
In terms of confusing similarity, the disputed domain name incorporates the Complainant’s trademark in its entirety. The trademark is combined with the common term “jobs” in the disputed domain name, which may create an association with jobs at the Complainant. The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark since it merely adds a common word after it.
The Panel therefore finds that the first element of the Policy is established. C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant establishes that the Respondent has no rights or legitimate interests to the disputed domain name.
The consensus view among UDRP panels is that once a complainant has made a prima facie case indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name, the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270 and paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has submitted evidence showing that it is not affiliated with the Respondent, it has not authorized the Respondent to use the trademark IBM, and that the Respondent is not commonly known by the disputed domain name. The Respondent has not rebutted these arguments.
The Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Therefore, the Panel finds that the second element of the Policy is fulfilled. D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establishes that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b)(i) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that the respondent has registered or has 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 that complainant, for valuable consideration in excess of your 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 you have engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business or competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to his 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 your website or location or of a product or service on his website or location.”
The Complainant has referred to previous decisions by earlier UDRP panels and by competent authorities in different countries to show that the trademark IBM is a well-known trademark. The Panel accepts this contention. The Panel therefore considers that the Respondent must have been aware of the Complainant’s trademark when registering the disputed domain name.
The Panel finds that using the disputed domain name for a pay-per-click website means that the Respondent is using the Complainant’s trademark to create confusion among Internet users to attract visitors to the Respondent’s website for commercial gain as per paragraph 4(b)(iv) of the Policy.
Moreover, the Panel finds that the offer to sell the disputed domain name for USD 4,750 is evidence of an attempt to sell the disputed domain name for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name and as such is further evidence of bad faith.
Therefore, the Panel finds that the third element of the Policy is fulfilled. 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.
Tuukka Airaksinen
Sole Panelist
Date: May 11, 2015
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