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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nokia Corporation v. Nokiagirls.com a.k.a IBCC
Case No. D2000-0102
1. The Parties
Complainant is Nokia Corporation, a corporation organized and existing under the laws of Finland, P.O. Box 86, FIN-24101, Salo, Finland, represented by John P. Reiner, Esq. and Shannon M. Hudnall, Esq., White & Case LLP, 1155 Avenue of the Americas, New York, NY 10036, United States of America, hereinafter the "Complainant".
Respondent is Nokiagirls.com a.k.a IBCC, 2 Shengan Road, Wuxi, Jiangsu 214035, People’s Republic of China, represented by Zhu Jiangping, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is "nokiagirls.com", hereinafter referred to as the "Domain Name". The registrar is Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complainant’s complaint on February 26, 2000 (electronic version) and February 28, 2000 (hard copy). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is March 5, 2000.
On March 5, 2000, the Center transmitted via email to Network Solutions Inc. a request for registrar verification in connection with this case. On March 6, 2000, Network Solutions Inc. transmitted via email to the Center, Network Solutions’ Verification Response, confirming that the Respondent is the registrant, that the administrative contact is Zhu Jiangping and that the technical contact is Webmaster, WWP, Inc.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on March 5, 2000, to the Respondent, Zhu Jiangping (email@example.com) and Webmaster, WWP, Inc (firstname.lastname@example.org) the Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier, facsimile and e-mail. The postal address used for Respondent was as follows:
2 Shengan Road
Wuxi, Jiangsu 214035
The Center advised that the Response was due by March 25, 2000.
Respondent did not submit any Response. Accordingly, the Center sent to Respondent a Notification of Response Default on March 29, 2000.
On April 4, 2000, in view of the Complainant’s designation of a single panelist the Center invited M. Geert Glas to serve as a panelist.
Having received on April 4, 2000, M. Geert Glas' Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Geert Glas was formally appointed as the Sole Panelist. The Projected Decision Date was April 18, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the Complaint, the evidence presented, the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The complaint is based upon two US trademark registrations for NOKIA, copies of which appear in Annexes E and F of the Complaint. These are:
1. NOKIA (word + logo), No. 1,734,209, registered on November 4, 992, for international classes 1, 7, 9, 11, 16, 17, 21, 24, 25, 37 and 42;
2. NOKIA (word), No. 1,570,492, registered on December 2, 1989, for international classes 1, 9, 11, 16, 21, 24 and 25.
Complainant indicates that he also owns registrations for the NOKIA mark in various other countries and uses its NOKIA mark to commercialize mobile phones in 130 countries, including China where Respondent is located.
It appears from an e-mail sent on March 6, 2000, by Network Solutions Inc. to the Center, that Respondent is the current registrant of the Domain Name. It however appears from a WHOIS query dated December 10, 1999 which constitutes Attachment 1 to the complaint that the Domain Name was registered on August 1st, 1999 by IBCC, but that as of January 14, 2000, the Domain Name became the property of Respondent (which is located at the same address as IBCC).
IBCC also registered the domain name dellgirls.com.
There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainant’s mark.
The Domain Name is connected to a web site displaying a menu with the words "COMPAQ", "IBM", "HP", "DELL", "GETWAY", the picture of a woman’s face and shoulder and a list of countries regrouped by continents. For example, the "Europe" list consists of the words, "French, German, Swedish, Finlander, Spanish, Italian Greek, World Girls".
Moreover, when one clicks on the link "MORE", two other pages are displayed with one picture each of Asian girls in blue uniforms. The web site contains a notice "copyright by IBCC. All rights reserved". The loading of the web site causes a rotating banner to appear. This banner contains hyperlinks to such sites as shopnow.com, altavista.com, mastersinstitute.com, projectorzone.com and webprovider.com.
It appears from Annex H to the complaint that, Complainant’s lawyer sent a cease and desist letter to IBCC by certified mail, requesting IBCC to cease any use of the Domain Name. Respondent did not provide any answer to this cease and desist letter.
It should be noted that the above-mentioned domain name "dellgirls.com" also registered by IBCC, is connected to a website entitled www.dellgirls.com but which is otherwise identical to the one described hereabove.
5. Parties Contentions
Complainant contends that Respondent has registered the Domain Name which "substantially replicates Complainant’s registered NOKIA trademark and was adopted by Respondent with the intent to exploit Complainant’s goodwill in the mark". According to Complainant, the Domain Name is confusingly similar to Complainant’s trademark, Respondent has no legitimate interest in respect of the Domain Name and the Domain Name has been registered and is used in bad faith.
Consequently, Complainant requires the cancellation of the Domain Name registration.
No Response was submitted by Respondent.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative 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."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has right; 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. Identity or Confusing Similarity
The Domain Name is "nokiagirls.com".
"NOKIA" is a registered trademark of the Complainant.
The Domain Name consequently consists of the trademark of the Complainant to which the general noun "girls" is added. The ability of this word "girls" to distinguish the Domain Name from the trademark of the Complainant is limited. As a general noun, "girls" is indeed a rather neutral addition to this trademark.
In view of the above, the Administrative Panel finds that the Domain Name is confusingly similar to the trademark "NOKIA" of the Complainant.
b. Rights or Legitimate Interests
Complainant has not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating any such mark. In addition to that, there is no element on the web site of Respondent that would in some way justify the use of the word "NOKIA" within the Domain Name.
By not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4c of the Policy, any rights or legitimate interests in the Domain Name.
Therefore, and in light of the arguments and the evidence brought by Complainant, the Administrative Panel finds that he has sufficiently established that Respondent has no right or legitimate interest in the Domain Name.
c. Registration and Use in Bad Faith
1- The trademark NOKIA is currently enjoying such fame internationally that it cannot reasonably be argued that Respondent/IBCC could have been unaware of the trademark rights vested therein when registering the Domain Name.
Contrary to this, Respondent’s familiarity with the IT world is clearly demonstrated by the mention of the trademarks COMPAQ, IBM, HP, DELL, and GETWAY (sic) on his website.
The mention of these trademarks and the choice of a domain name incorporating the trademark NOKIA are related in that they illustrate Respondent’s eagerness to identify with and be identified with well-known IT companies.
2. The registration of the Domain Name is thereby part of a pattern in that it was registered by the same entity IBCC which also registered DELLGIRLS.COM. Only the Domain Name was subsequently transferred to Respondent whose address is however identical to the one of IBCC which still claims copyright in the web site to which the Domain Name is connected (and which is identical to the website to which DELLGIRLS.COM is connected).
3. The content of Respondent’s web site is very limited as it consists basically of only two pictures of Asian girls in blue uniforms. This poor content is contrasted by the multitude of banner advertisements inviting the visitors of the website to surf to a number of e-commerce websites where various types of equipment, training programs and internet related services can be ordered.
It can reasonably be presumed that Respondent has entered into commercial agreements whereby he benefits financially from visitors to his site who "click" on the different banner adds.
It can therefore be said that Respondent’s current use of the Domain Name is aimed at creating traffic to his website which is predominantly used as an advertising space. The presence of the trademark NOKIA in the Domain Name is thereby a key factor in the financially-driven attempt to draw internet users, some of which will be browsing for Complainant’s website(s), to Respondent’s website.
In the opinion of the Administrative panel, Respondent is thereby taking a free ride on the goodwill of Complainant’s NOKIA trademark.
4. Complainant asserts that Respondent is establishing a commercial website "possibly with pornographic content".
In this respect, Complainant seems to be jumping to conclusions. Respondent’s current website does indeed not contain any pornographic material.
However, the menu classifying women by country and continent which is featured prominently on Respondent’s website, can create the impression with the average visitor that the content of the website is adult oriented. In the opinion of the Administrative Panel, this constitutes an aggravating element in the assessment of the bad faith with which the Domain Name is being used by the Respondent.
In conclusion and in view of the above, the Administrative Panel finds that the Domain Name has been registered and is being used in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name "nokiagirls.com" registered by Respondent is confusingly similar to the trademark of Complainant, that Respondent has no right or legitimate interest in respect of the Domain Name, and that Respondent’s Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4, i of the Policy, the Administrative Panel requires that the registration of the Domain Name "nokiagirls.com" be cancelled.
Date: April 18, 2000