The Complainant is International Business Machines Corporation of Armonk, New York, United States of America, internally represented.
The Respondent is WhoisGuard Protected of Panama, Panama / Richard Anderson of Brookhaven, Georgia, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 23, 2018. On August 24, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 August 27, 2018 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 amended Complaint on the same date.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 19, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2018.
The Center appointed William Hamilton as the sole panelist in this matter on September 28, 2018. 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 a well-known company which has manufactured and offered for sale various communication and information creation and transmission devices over 100 years. The Complainant owns a large collection of registrations for the mark IBM (the “Mark”) with the United States Patent and Trademark Office covering an expansive array of classes of products and services ranging from punch machines, calculating machines, teletype machines to typewriters to modern computers and information retrieval systems. The Complainant’s original registration of the Mark dates back to 1957. The Complainant also owns and operates the domain name . The Mark is “well-known”. International Business Machines v. Niculescu Aron Razvan Nicolae,WIPO Case No. DRO2010-0003.
The disputed domain name was registered by the Respondent on May 30, 2018 and according to the evidence provided by the Complainant, it has resolved to a parking page with pay-per-click links. 5. Parties’ Contentions A. Complainant
The Complainant asserts that the disputed domain name is confusingly similar to the Mark because the disputed domain incorporates the whole of the Mark which is preceded by the generic terms “forever” and “love.” The Complainant asserts that the Respondent has no rights or legitimate interests in the Mark as the Respondent has never conducted any bona fide business as “IBM” or under the disputed domain name. Finally, the Complainant asserts that the disputed domain name was registered and used in bad faith to attract unsuspecting Internet users to the Respondent’s website that features click through commercial links to websites appearing to offer for sale IBM and other computer related products. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds the disputed domain name is confusingly similar to the Complainant’s Mark. The disputed domain name features the entire Mark only preceded by the words “forever” and “love.”
The Complainant has met its burden of proof under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in the Mark or the disputed domain name. The Complainant has specifically disavowed licensing the Mark to the Respondent or authorizing the Respondent to use the Mark or the disputed domain name. There is no evidence that the Respondent has ever conducted any bona fide business under the Mark or the disputed domain name. The Respondent has failed to respond to the Complainant or any of the cease and desist letters sent by the Complainant to the Respondent. Nu Mark LLC v. Perfect Privacy, LLC / Kyle Messier, Apex Juice,WIPO Case No. D2018-1082; World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe,WIPO Case No. D2008-0642.
The Complainant has met its burden of proof under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel finds the disputed domain name was registered and used in bad faith. It is inconceivable that the Respondent, whose address provided to the Registrar is near Atlanta, Georgia, a major United States of America metropolis, would innocently seize upon a domain name composed of “forever” plus “love” plus “ibm” without knowledge of this famous Mark. These prefixes actually enhance the likelihood of confusion as they can only be read to refer to the Mark. Florida National University, Inc. v. Registration Private, Domains By Proxy, LLC / Toby Schwarzkopf,WIPO Case No. D2017-0138; Inter IKEA Systems B.V. v. Franklin Lavall?e / IkeaC,WIPO Case No. D2015-2042. The Respondent, moreover, actually provides click through links to websites purported selling the Complainant’s products. The Respondent has clearly attempted to confuse and divert Internet customers to its own website for commercial gain and profit. Telstra Corporation Ltd. v. Nuclear Marshmallows,WIPO Case No. D2000-0003 (only feasible explanation for registration of the disputed domain name is intention to cause confusion, mistake and deception).
The Complainant has met its burden of proof under paragraph 4(a)(iii) 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 disputed domain name be transferred to the Complainant.
William F. Hamilton
Sole Panelist
Date: October 1, 2018
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