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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Council of Better Business Bureaus, Inc., v The Better Business Bureau

Case No. D2001-0677

 

1. The Parties

Complainant is the Council of Better Business Bureaus, Inc., (the Council) with its principal place of business at 4200 Wilson Blvd., Suite 800, Arlington, VA 22203, USA. Complainant is represented in this administrative proceeding by Victoria Jean Doran, Assistant General Counsel.

Respondent is The Better Business Bureau (BBB-Asia), of Lippo Centre Suite 2207-9 Tower Two or of Hi Tech Street, Hong Kong, SAR the Rep of China.

 

2. The Domain Name and Registrar

The Domain Name the subject of this Complaint is <bbb-asia.com>.

The Registrar of the Domain Name is Network Solutions, Inc. (NSI), 505 Huntmar Park Drive, Herndon, Virginia, 20170, USA.

 

3. Procedural History

3.1. The Complaint in respect of the disputed Domain Name was received by the World Intellectual Property Organization Arbitration and Mediation Center (WIPO Center) in hard copy on May 22, 2001 and by email on May 25, 2001. Complainant states that a copy of the Complaint was sent on May 17, 2001, to Respondent by international express mail and (without annexes) by email. A copy was sent by fax to the Registrar, NSI, on the same date.

3.2. On May 29, 2001, verification was received from the Registrar, NSI, that the disputed Domain Name <bbb-asia.com> is registered in the name of The Better Business Bureau, Hong Kong. The NSI Service Agreement Version 5 is in effect.

3.3. On May 30, 2001, WIPO Center determined (and the Administrative Panel has subsequently accepted) that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (Rules) and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (Supplemental Rules) all as approved by the Internet Corporation for Assigned Names and Numbers (ICANN).

3.4. On May 31, 2001, Formal Notification of Complaint and Commencement of Administrative Proceeding (with enclosures) was sent by WIPO Center by courier to the most recently registered address of Respondent and also to a different address the Complainant had obtained from the Registrar on February 22, 2001. Email copies without enclosures were sent to Respondent, copied to Complainant, ICANN and NSI on May 30, 2001. On that date a printed record of the first page of the disputed website was made.

3.5. The couriered copies of the Formal Notification of Complaint and Commencement of Administrative Proceeding were not successfully delivered and were returned to WIPO Center where they were received on June 12, 2001.

3.6. No Response was received from Respondent by the due date of June 19, 2001, and a Notification of Respondent Default was sent to the Parties on June 21, 2001.

3.7. On July 3, 2001, Dr. Clive Trotman, having provided the WIPO Center with a Statement of Acceptance and Declaration of Impartiality, was appointed as a single member Administrative Panel and notification was sent by email to Complainant, Respondent and the Administrative Panel. An electronic copy of the Complaint and Response was sent by email to the Administrative Panel on July 3, 2001, and the hardcopy of the Case File was sent by courier.

 

4. Factual Background

4.1. The Complainant is a non-profit member organization, incorporated in Delaware, USA.

4.2. Complainant holds trademarks or service marks (hereafter trademarks) incorporating "Better Business Bureau" or "BBB" for "investigative and information services relative to business and trade practices for protecting responsible business against abusive business practices and for establishing and maintaining legitimate advertising and merchandising practices" in several countries including USA, UK, Canada, Costa Rica, Mexico, Japan and the European Community.

4.3. Complainant has used its trademarks continuously since 1916.

4.4. Respondent is the Registrant of the disputed Domain Name <bbb-asia.com>, which has a record created date of February 8, 2001.

4.5. Respondent's website uses the headline "Better Business Bureau Asia" and a "BBB Asia" logo. The website presents a service of providing reports on companies.

 

5. Parties’ Contentions

A. Contentions of Complainant

5.1. The contentions of Complainant include (paragraphs 5.2-5.8 below) that:

5.2. The dispute is properly within the scope of the Policy. The registration agreement, pursuant to which the Domain Name being the subject of this Complaint was registered, incorporates the Policy.

5.3. The disputed Domain Name is confusingly similar to trademarks in which Complainant has rights.

5.4. Respondent has no rights or legitimate interest in the disputed Domain Name. There is no Council of Better Business Bureaus Asia in bona fide existence and no such entity owns legitimately the trademark "BBB-Asia". Respondent is attempting to indicate that the website is owned and operated by Complainant to provide information on Asian companies.

5.5. Respondent’s registration and use of the disputed Domain Name is in bad faith in terms of the Policy. Respondent is intentionally attempting to attract Internet users to its website for commercial gain by creating a likelihood of confusion in the terms of Paragraph 4(b)(iv) of the Policy. Respondent claims to provide services effectively identical to those of Complainant. Respondent's website imitates Complainant's website in having a similar look and feel, the same font and color for "BBB" and contains information copied from Complainant’s website including its Mission Statement, privacy policy, legal information, and disclaimer of endorsement.

5.6. An investment company that advised an Australian resident to verify the investment company’s reliability with BBB-Asia was itself apparently connected with BBB-Asia as evidenced by the Registrants of both the investment company and BBB-Asia having the same email address <concept-promotions@gmx.de> in common.

5.7. Complainant has made unsuccessful attempts to contact Respondent by international express mail at the different present and previous addresses of registration on record and by electronic mail. Mail has been returned undelivered and no approaches have been replied to.

5.8. The remedy requested by Complainant is that the disputed Domain Name be cancelled.

B. Contentions of Respondent

5.9. No Response has been received from Respondent.

 

6. Discussion and Findings

Jurisdiction of Administrative Panel

6.1. Paragraph 4(a) of the Uniform Policy states:

"You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that:

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith."

6.2. Complainant has made the relevant assertions as in 6.1 above. This dispute is properly within the scope of the Domain Name Dispute Policy and the Administrative Panel has jurisdiction to decide the dispute.

Whether the Domain Name is Identical or Confusingly Similar to a Trademark

6.3. The Domain Name subject to this Complaint is <bbb-asia.com>. The Domain Name not only includes the Complainant's trademark "BBB" but is confusingly suggestive of an Asian branch or office or Asian-related site of the Complainant. The Administrative Panel finds that the disputed Domain Name is confusingly similar to the trademark "BBB" in which Complainant has rights in terms of Paragraph 4(a)(i) of the Uniform Policy.

Whether Respondent Has Rights or Legitimate Interests in Respect of the Domain Name

6.4. Complainant certifies that the continuous use of its trademarks including "BBB" dates back to 1916 and asserts that Respondent has no rights or legitimate interests in the disputed Domain Name.

6.5. Respondent has not responded with any claim to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services in terms of Paragraph 4(c)(i) of the Policy.

6.6. There is no evidence that Respondent as an individual, business, or other organization has been commonly known by the Domain Name in terms of Paragraph 4(c)(ii) of the Policy.

6.7. Respondent does not claim to be making a legitimate noncommercial or fair use of the Domain Name in terms of Paragraph 4(c)(iii) of the Policy.

6.8. The Administrative Panel finds that Respondent has no rights or legitimate interests in the disputed Domain Name in terms of Paragraph 4(a)(ii) of the Policy.

Whether Domain Name Has Been Registered and Is Being Used in Bad Faith

6.9. Paragraph 4(a)(iii) of the Policy requires the Complainant to prove that the Domain Name has been registered and is being used in bad faith. Paragraph 4(b), whilst without limitation, provides in clause (iii) for a finding of bad faith where "you have registered the domain name primarily for the purpose of disrupting the business of a competitor", or in clause (iv) where "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 website or location or of a product or service on your website or location".

6.10. Uncontested evidence as to the misleading style and content of Respondent's website is presented by Complainant and supported by screen prints. Respondent, on its website, claims to provide a range of services identical to those provided by the North American Better Business Bureaus; claims that BBB-Asia is part of a Council of Better Business Bureaus Asia that Complainant says does not genuinely exist; implies that BBB-Asia is well established; implies that BBB-Asia is an acronym for Better Business Bureau Asia; and claims that Complainant owns the Asia-related trademarks and "BBB" logo. Further evidence of passing-off includes the site having a similar look and feel to Complainant's, and the same font and color for "BBB". Text copied from Complainant's to Respondent's site includes the Complainant Council's Mission Statement, privacy policy, legal information and disclaimer of endorsement. One page deviously states: "As to date their (sic) are no companies in the Asian region misusing our logo or name." The Administrative Panel finds on the evidence that Respondent has for commercial gain attempted to attract users by misleading them into thinking it is affiliated with Complainant.

6.11. Complainant certifies that a person who had been offered an investment by International Asset Management, Thailand (IAM) was advised by IAM to verify its reliability with BBB-Asia, in consequence of which the person ultimately reported the facts to the Complainant. Enquiries by Complainant revealed evidence that the same email address <concept-promotions@gmx.de> is common to the Registrants of both (a) the disputed Domain Name and (b) IAM. The Administrative Panel finds this to be further evidence of attempted commercial gain and of activity disruptive of Complainant's legitimate business and good name.

6.12. The Administrative Panel finds on the facts that the registration and use of the disputed Domain Name are in bad faith in general terms in addition to fulfilling all ingredients of Paragraph 4(b)(iv) of the Policy. Bad faith is also found in terms of Paragraph 4(b)(iii) of the Policy since the activities complained of are competitive with and disruptive of the business of the Complainant.

6.13. In summary, as concluded in 6.3 above the disputed Domain Name is confusingly similar to Complainant's trademarks and Complainant succeeds under Paragraph 4(a)(i) of the Policy. As concluded in 6.8 above, Respondent has no rights or legitimate interests in the Domain Name and Complainant succeeds under Paragraph 4(a)(ii) of the Policy. As concluded in 6.12 above, Respondent has registered and used the Domain Name in bad faith and Complainant succeeds under Paragraph 4(a)(iii) of the Policy. The Complainant has proven all three points required by Paragraph 4(a) of the Uniform Policy and the Administrative Panel gives its Decision for the Complainant and against the Respondent.

 

7. Decision

The Decision of the Administrative Panel is that the disputed Domain Name <bbb-asia.com> is confusingly similar to the trademark "BBB" in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed Domain Name; and that Respondent has registered and is using the disputed Domain Name in bad faith. The Domain Name <bbb-asia.com> shall be cancelled.

 


 

Dr. Clive N. A. Trotman
Sole Panelist

Dated: July 13, 2001

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2001/d2001-0677.html

 

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