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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

ViewSonic Corporation v. Informer Associates Inc.

Case No. D2000-0852

 

1. The Parties

The Complainant is ViewSonic Corporation, a Delaware corporation with its principal place of business at 381 Brea Canyon Road, Walnut, California, USA 91789. It is represented by Diane M. Lambillotte of Riordan & McKinzie, Attorneys, Los Angeles, USA.

The Respondent is Informer Associates Inc. for which two addresses are given:

(a) Attention Henry Chen, Fortune International Development Ent. Co. Ltd, Zulin Road Alley 179 No. 2, 4th-5, Taipei, Taiwan. Telephone (886-2) 29228905; fax (886-2) 23314538; email: hchen@WASIE.com.

(b) Attention Henry Chen, Room 905, 9F, No. 7, Sec. 1, Chung Hsiao W. Road, Taipei, Taiwan. Telephone (886-2) 23881626.

The Respondent is not represented by counsel and has filed no Response.

 

2. The Domain Name and Registrar

The domain names at issue are "viewsonic.net" and "viewsonic.org". The domain names are registered with Network Solutions Inc., 505 Huntmar Park Drive, Herndon, Virginia 20170, United States of America ("NSI").

 

3. Procedural History

The Complaint submitted by ViewSonic Corporation was received on July 22, 2000, (electronic version) and July 25, 2000, (hard copy) by the World Intellectual Property Organization Arbitration and Mediation Center ("WIPO Center").

On or about July 27, 2000, a request for Registrar verification was transmitted by the WIPO Center to NSI, requesting it to:

Confirm that a copy of the Complaint had been sent to it by the Complainant as required by the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("Supplemental Rules"), paragraph 4(b).

Confirm that the domains name at issue are registered with NSI.

Confirm that the person identified as the Respondent is the current registrant of the domain names.

Provide full contact details, i.e., postal address(es), telephone number(s), facsimile number(s), email address(es), available in the Registrar’s WHOIS database for the registrant of the disputed domain names, the technical contact, the administrative contact and the billing contact for the domain names.

Confirm that the Uniform Domain Name Dispute Resolution Policy was in effect.

Indicate the current status of the domain names.

By email dated August 1, 2000, NSI advised WIPO Center as follows:

NSI had received a copy of the Complaint from the Complainant.

NSI is the Registrar of the domain name registrations "viewsonic.net" and "viewsonic.org".

The Respondent is shown as the "current registrant" of the domain names "viewsonic.net" and "viewsonic.org". The registrant’s contact details are as above.

The administrative contact is Henry Chen at the address given above.

The technical and zone contact is Hostmaster, Name Services, 1300 Bristol North, Suite 220, Newport Beach, CA 92660, USA. Phone 714-250-7262; fax 714-250-7265.

The billing contact is the Billing Administrator at the said Name Services.

NSI’s 4.0 Service Agreement is in effect.

The domain name registrations "viewsonic.net" and "viewsonic.org" are in "Active" status.

NSI has currently incorporated in its agreements the policy for Uniform Domain Name Dispute Resolution adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN").

The advice from NSI that the domain names in question are still "active", indicates the Respondent has not requested that the domain names at issue be deleted from the domain name database. The Respondent has not sought to terminate the agreement with NSI. Accordingly, the Respondent is bound by the provisions of NSI’s Domain Name Dispute Resolution Policy, i.e., the ICANN policy. The Respondent has not challenged the jurisdiction of the Panel.

Having verified that the Complaint satisfied the formal requirements of the Uniform Policy and the Uniform Rules, the WIPO Center on August 4, 2000, transmitted by post/courier and by email a notification of Complaint and Commencement of Administrative Proceedings to the Respondent. A copy of the Complaint was also emailed to NSI and ICANN.

The Complainant elected to have its Complaint resolved by a single panel member: it has duly paid the amount required of it to the WIPO Center.

The Respondent was advised that a Response to the Complaint was required within 20 calendar days (i.e., by August 23, 2000). The Respondent was also advised that any Response should be communicated, in accordance with the Rules, by four sets of hard copy and by email.

On August 28, 2000, the WIPO Center invited the Honourable Sir Ian Barker QC of Auckland, New Zealand, to serve as Sole Panelist in the case. It transmitted to him a statement of acceptance and requested a declaration of impartiality and independence.

On August 28, 2000, the Honourable Sir Ian Barker QC advised his acceptance and forwarded to the WIPO Center his statement of impartiality and independence. The Panelist finds that the Administrative Panel was properly constituted in accordance with the Rules and the Supplemental Rules.

On August 30, 2000, WIPO Center forwarded to the Honourable Sir Ian Barker QC by courier the relevant submissions and the record. These were received by him on September 4, 2000. In terms of Rule 5(b), in the absence of exceptional circumstances, the Panel would have been required to forward its decision by September 13, 2000.

The Panel has independently determined and agrees with the assessment of WIPO Center that the Complaint meets the formal requirements of the Rules for Uniform Domain Name Dispute Resolution Policy as approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules.

The language of the administrative proceeding is English, being the language of the registration agreement.

 

4. Factual Background

The Complainant is the owner of the trademark "Viewsonic" registered in the United States Patent and Trademark Office. It has been also the registered owner of the domain name "viewsonic.com" since 1995. The Complainant has used the mark "Viewsonic" continuously since 1990 to identify its computer products which it sells and distributes world-wide. It is a leader in the computer monitor industry.

In December 1998, the Respondent registered the disputed domain names. It has no right or licence from the Complainant to use them. In March 1999 the Respondent advised the Complainant’s Taiwan office of the registrations. It sought to rent to the domain names to the Complainant for US$1,000 per month, with a deposit of US$3,000. The Complainant refused this offer and issued a "cease and desist" letter on March 16, 1999. A request to the Registrar under the then disputes policy saw the names placed "on hold". A further "cease and desist" letter was delivered to the Respondent on August 7, 1999.

 

5. Parties’ Contentions

The Complainant submits that the only possible conclusion must be the Respondent is using its world-famous mark, "Viewsonic", in bad faith. The fact that the Respondent advised the Complainant of the registration and then made what can only be characterized as a brazen attempt to rent the names to the Complainant indicates bad faith.

The Respondent has made no submissions.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel to:

"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".

The burden for the Complainant, under paragraph 4(a) of the ICANN Policy, is to show:

- That the domain names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- That the Respondent has no rights or legitimate interests in respect of the domain names; and

- That the domain name have been registered and are being used by the Respondent in bad faith.

The domain names "viewsonic.net" and "viewsonic.org" are obviously identical to the Complainant’s mark. The Panel so decides.

Likewise, the Panel decides that the Respondent has no rights or legitimate interests in the domain names at issue. The Respondent has never suggested to the contrary.

Paragraph 4(b) of the ICANN Policy states:

"For the purposes of Paragraph 4(a)(iii), 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 you have registered or you have 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) you have 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) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location."

It should be noted that the circumstances of bad faith are not limited to the above.

The Panel considers that the Respondent has registered and used the disputed domain names "viewsonic.net" and "viewsonic.org" in "bad faith" for the following reasons:

(a) "viewsonic.net" and "viewsonic.org" are so obviously connected with such a well-known product that their very use by someone with no connection with the product suggests opportunistic bad faith.

(b) The Respondent’s offer to rent the sites to the Complainant is breathtakingly cheeky and powerful evidence of bad faith: see the decisions in such WIPO Center cases of Harrods Ltd v. Boyd (Case No. D2000-0060), China Ocean Shipping (Group) Co. Ltd v. Cao Shan Hui (Case No. D2000-0066).

The present situation is similar to that in Educational Tertiary Service v. TOEFL (WIPO Case D2000-0044) where the learned Panelist said:

"The value which Respondent seeks to secure from sale of the domain name is based on the underlying value of Complainant’s trademark. This value is grounded in the right of Complainant to use its mark to identify itself as a source of goods or services. Respondent has failed to establish any legitimate domain name-related use for Complainant’s trademark, in a context in which such legitimization might be possible. The Respondent having failed to present any such justification, the Panel may reasonably infer that Respondent neither intended to make nor has made any legitimate use of Complainant’s trademark in connection with the [domain name] at issue."

Accordingly, for all the various reasons discussed above, the Panel finds that the domain names "viewsonic.net" and "viewsonic.org" have been registered and is being used by the Respondent in bad faith.

Legal Considerations

Although entitled to consider principles of law deemed applicable, the Panel finds it unnecessary to do so in any depth. The jurisprudence which is being rapidly developed by a wide variety of WIPO Panelists world-wide under the ICANN Policy provides a fruitful source of precedent.

 

7. Decision

For the foregoing reasons, the Panel decides:

(a) that the domain names registered by the Respondent are identical to the trademark to which the Complainant has rights;

(b) that the Respondent has no rights or legitimate interests in respect of the domain names; and

(c) the Respondent’s domain names have been registered and are being used in bad faith.

Accordingly, pursuant to paragraph 4(i) of the Policy, the Panel requires that the registration of the domain names "viewsonic.net" and "viewsonic.org" be transferred to the Complainant.

 


 

Hon Sir Ian Barker QC
Presiding Panelist

Dated: September 6, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0852.html

 

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