The Complainant is Sony Corporation of Tokyo, Japan, represented by Jonas Rechtsanwaltsgesellschaft GmbH, Germany (hereinafter “Complainant”).
The Respondent is Pavlicevic Marko of Podgornica, Montenegro (hereinafter “Respondent”). 2. The Domain Name and Registrar
The disputed domain name (the “domain name at issue”) is registered with ME-net (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 6, 2013. On May 6, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On May 7, 2013, the Registrar transmitted by email to the Center its verification response confirming that 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, approved by the doMEn d.o.o (“doMEn”) on April 30, 2008, the Rules for Uniform Domain Name Dispute Resolution Policy for .ME, approved by doMEn on October 1, 2012 (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 Respondent of the Complaint, and the proceedings commenced on May 13, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was June 2, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 3, 2013.
The Center appointed M. Scott Donahey as the sole panelist in this matter on June 7, 2013. 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.
While the registration agreement attached to the Complaint as Annex 2 is in the English language, it does not appear to be the registration agreement used by the Registrar ME-net, the only authorized registrar for “.me”. However the Registrar confirmed that the language of the registration agreement was English, 4. Factual Background
Complainant, headquartered in Tokyo, Japan, is the manufacturer of consumer electronic products sold worldwide, and its name is well-known throughout the world. Complainant has registered the SONY mark in countries around the world and in the European Union. Complaint, Annexes, 4 and 5. Complainant’s trademark registrations date back at least to the early 1960’s. Panels have recognized that the SONY mark is a well-known mark throughout the world. See, e.g., Sony Kabushiki Kaisha v. ,WIPO Case No. D2000-1074.
The domain name at issue was created on August 5, 2008. Complaint, Annex 1. Respondent uses the domain name at issue to resolve to a web site at which links to sites selling the goods of Complainant and Complainant’s competitors. This is a classic parking site, on which Respondent is compensated for user’s clicks on the links and arrival at the web site of a sponsoring entity. 5. Parties’ Contentions A. Complainant
Complainant contends that the domain name at issue is identical to Complainant’s famous mark, that Respondent has no rights or legitimate interests in the domain name at issue, since Respondent is using Complainant’s mark to attract users to Respondent’s parking site and since Complainant has never authorized Respondent to use the mark, and that Respondent has registered and is using the domain name at issue in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
2) that the respondent has no rights or legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith. A. Confusingly Similar or Identical
The Panel finds that the second level domain name registered by Respondent in the “.me” ccTLD is identical to Complainant’s famous SONY trademark. B. Rights or Legitimate Interests
The consensus view of WIPO panels concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), Section 2.1.
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name at issue and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the domain names at issue. C. Registered and Used in Bad Faith
Respondent has been using the domain name at issue to resolve to a parking site at which there are links to sellers selling Complainant’s products and to sellers selling the products of Complainant’s competitors. This falls within paragraph 4(b)(iv) of the Policy and is an example of bad faith registration and use. Accordingly, the Panel finds that Respondent has registered and is using the domain name at issue 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 domain name at issue be transferred to Complainant.
M. Scott Donahey
Sole Panelist
Date: June 10, 2013
Full & Egal Universal Law Academy