The Complainant is International Business Machines Corporation, United States of America, represented by Lisa Ulrich, United States of America.
The Respondent is Translation Failed, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2019. On December 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 12, 2019, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 20, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 9, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 10, 2020. The Center appointed Francine Tan as the sole panelist in this matter on January 23, 2020. 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 was incorporated on June 16, 1911 as an amalgamation of three previously-existing companies. It officially became International Business Machines on February 14, 1924. The Complainant states it has been offering products under its IBM trade mark ever since. Its reputation, as a result of the over 100 years of providing high-quality products and services has led to the Complainant’s reputation as one of the premier manufacturers and providers of computers and computer-related goods and services throughout the world. The Complainant states it is ranked the 13th most valuable global brand by BrandZ, the 12th best global brand by Interbrand, the 38th largest company on the Fortune U.S. 500 list, and the 114th largest company on the Fortune Global 500 list. The Complainant owns and has owned trade mark registrations for IBM in 131 countries around the world for several decades, and for a broad range of goods and services. The Complainant owns, inter alia, the following United States (“U.S.”) trade mark registrations for the plain letters “IBM”, where the Respondent is located: U.S. Registration Nos. 1,694,814 (registration date: June 16, 1992); 1,243,930 (registration date: June 28, 1983); and 640,606 ((registration date: January 29, 1957). In earlier UDRP panel decisions, the Complainant’s IBM trade mark has been found to be a well-known trade mark (see e.g., International Business Machines Corporation v. Sadaqat Khan,WIPO Case No. D2018-2476; International Business Machines Corporation v. Niculescu Aron Razvan Nicolae,WIPO Case No. DRO2010-0003; International Business Machines Corporation v. Linux Security Systems srl,WIPO Case No. DRO2010-0004). The Complainant continues to expend substantial resources including USD5 billion each year on advanced research and USD1 billion annually on marketing its goods and services globally. The IBM trade mark was valued by BrandZ as worth over USD86 billion in 2019, USD96 billion in 2018, and over USD102 billion in 2017. The disputed domain name was registered on September 15, 2019 and has been used for pornographic/adult content. 5. Parties’ Contentions A. Complainant 1. The disputed domain name is identical or confusingly similar to the Complainant’s IBM trade mark in which it has rights. The only difference lies in the addition of the numeral “66” which is minor and does not obviate the confusing similarity with the Complainant’s IBM trade mark. 2. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has not been licenced, contracted, or otherwise permitted by the Complainant in any way to use the IBM trade mark, or to apply for any domain name incorporating such trade mark. There is no evidence that IBM or IBM66 is the name of the Respondent’s corporate entity, nor is there any evidence of fair use. There is also no evidence that the Respondent is using or plans to use the IBM trade mark or the domain name incorporating the IBM trade mark for a bona fide offering of goods or services. On the contrary, the Respondent has been actively using the disputed domain name to promote its website for illegitimate commercial gains. The Complainant has been using the disputed domain name for its pornographic and online gambling websites. 3. The disputed domain name was registered and is being used in bad faith. The Respondent must have been well aware of the Complainant’s well-known trade mark at the time it registered the disputed domain name. The Complainant sent a cease and desist letter to the Registrar at the email address listed in the WhoIs records on November 23, 2019, asking the Respondent to disable and transfer the disputed domain name to the Complainant. Further, the Respondent’s misuse of the disputed domain name which contains the IBM trade mark is clear evidence of bad faith as it generates more traffic, resulting in more money for the Respondent. It also creates a likelihood of a confusion as to the relationship between the Complainant and the Respondent, including as to the source, relationship, or endorsement of the Respondent’s websites and/or goods and services. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established it has rights in the IBM trade mark. The trade mark is reproduced in its entirety in the disputed domain name. The Panel agrees that the addition of the numeral “66” does not serve to remove the confusing similarity with the Complainant’s IBM trade mark. The disputed domain name is therefore confusingly similar to the Complainant’s IBM trade mark. The Panel accordingly finds that the first element of paragraph 4(a) of the Policy has been satisfied. B. Rights or Legitimate Interests The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant’s trademark registrations and many years of use of the IBM trade mark long predate the registration of the disputed domain name. The Panel agrees that IBM is a well-known trade mark. There is no evidence that any licence or authorization has been extended by the Complainant to the Respondent for the use of the IBM trade mark in a domain name. Neither is there evidence that the Respondent is commonly known by the name “IBM” or “IBM66”. The use of the disputed domain name in relation to pornographic and gambling sites does not constitute a bona fide offering of goods or services. It in fact results in a dilution of the Complainant’s well-known IBM trade mark through tarnishment. The Respondent failed to respond or rebut the Complainant’s assertions. The Panel therefore finds that the second element of paragraph 4(a) of the Policy has been satisfied. C. Registered and Used in Bad Faith The Complainant’s IBM trade mark is such a well-known mark that the Respondent could not by pure coincidence and without knowledge of the IBM mark have selected the disputed domain name without the Complainant and/or its mark in mind. The Panel finds that the Respondent registered the disputed domain name with a view to garner more Internet traffic to its pornographic and gambling sites and to generate revenue therefrom. The inference of opportunistic bad faith on the Respondent’s part has not been rebutted by the Respondent. The Panel therefore finds that the third element of paragraph 4(a) of the Policy has been 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 name Francine Tan
Sole Panelist
Date: January 29, 2020
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