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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Convergys Corporation v. Roshni Sohail

Case No. D2006-0043

 

1. The Parties

The Complainant is Convergys Corporation, Cincinnati, United States of America, represented by Frost Brown Todd LLC, United States of America.

The Respondent is Roshni Sohail, Dubai, United Arab Emirates.

 

2. The Domain Name and Registrar

The disputed domain name <convergs.com> is registered with Melbourne IT trading as Internet Names Worldwide.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 11, 2006. On January 12, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On January 16, 2006, Melbourne IT trading as Internet Names Worldwide transmitted by email to the Center its verification response. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 8, 2006.

The Center appointed Ian Blackshaw as the Sole Panelist in this matter on February 13, 2006. 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 is the leading provider of integrated customer care and billing solutions in the world, serving top companies in communications, financial services, technology, employee care and other industries in more than 60 countries. The Complainant employs over 66,000 people in contact centers, data centers and offices in the United States, Canada, Latin America, Europe, the Middle East and Asia. And, in 2004, its revenues topped $2.5 billion.

The Complainant, by itself and through its licensed affiliates and subsidiaries, has used the trademark, CONVERGYS, the subject of the present Complaint, since its inception in 1998. This mark consists of a coined term with no common meaning.

The Complainant is the proprietor of 189 trademark registrations in over 48 countries, including several trademark and/or service mark registrations in certain Middle East countries, the area listed as the Respondent’s contact address. These Middle East registration details are as follows:

CONVERGYS—Registration No. 97860 (Republic of Lebanon), registered May 11, 2004, for “Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus and instruments for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers; calculating machines, data processing equipment and computers; fire-extinguishing apparatus” in Class 9;

“Employee relations information services; payroll preparations; administration of business payroll for others; employment counseling and recruiting; employment hiring, recruiting, placement, staffing and career networking services; employment outplacement services, record management; business management planning; business planning” in Class 35.

CONVERGYS—Registration No. 584/84 (Kingdom of Saudi Arabia), registered August 26, 2001, for “Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signaling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire-extinguishing apparatus” in Class 9.

CONVERGYS—Registration No. 595/65 (Kingdom of Saudi Arabia), registered November 4, 2001, for “Advertising; business management; business administration; office functions, the bringing together, for the benefit of others, of a variety of goods (excluding the transport thereof), enabling customers to conveniently view and purchase those goods, all services included” in Class 35.

CONVERGYS—Registration No. 589/21 (Kingdom of Saudi Arabia), registered September 24, 2001, for “Computer services, namely e-mail response services; telecommunication message processing services provided by means of a world wide computer network; e-mail, voicemail, cellular telephone, long-distance telephone, facsimile transmission; cellular telephone communication services” in Class 38.

CONVERGYS—Registration No. 595/66 (Kingdom of Saudi Arabia), registered November 4, 2001, for “Providing of food and drink; temporary accommodation; medical, hygienic and beauty care; veterinary and agricultural services; legal services; scientific and industrial research; computer programming; services that cannot be placed in other classes, custom computer system analysis, design and development; computer software design services and consulting services relating thereto” in Class 42.

CONVERGYS—Registration No. 2001 02935 (Republic of Turkey), registered February 15, 2001, for “Computer software programs; namely programs for producing telephone system reports” in Class 9.

CONVERGYS—Registration No. 2001 02934 (Republic of Turkey), registered February 15, 2001, for “Business services, namely telephone management and accounting report services; computerized database management services; marketing research services; conducting marketing studies; telemarketing services; data processing services in the fields of internal telecommunication systems and information management systems; business consulting services in the fields of internal communication systems and information processing and management systems; account management services in the fields of internal telecommunication systems; telecommunication billing; generating reports detailing customer usage of telecommunications equipment; providing outsourced customer support services for others in the nature of information management and answering customer inquiries through telephonic, electronic, and worldwide computer network-based means” in Class 35;

“Computer services, namely e-mail response services; telecommunication message processing services provided by means of a world wide computer network; e-mail, voicemail, cellular telephone, long-distance telephone, facsimile transmission; cellular telephone communication services” in Class 38;

“Custom computer system analysis, design and development; computer software design services and consulting services relating thereto” in Class 42.

CONVERGYS—Registration No. 2,959,506 (United States), registered June 7, 2005, for “Employee relations information services; payroll preparation; administration of business payroll for others; employment counseling and recruiting; employment hiring, recruiting, placement, staffing and career networking services; employment outplacement services; records management, namely, document indexing for others; business management planning; business planning” in Class 35

“Administration of employee benefit plans; administration of employee pension plans; administration of employee welfare benefit plans; administration of patient reimbursement programs; administration of pre-paid health care plans; administration of preferred provider plans for employers; dental health insurance administration; insurance administration; insurance claims administration; financial information processing” in class 36; and

“Pre-employment background screening” in Class 45.

CONVERGYS—Registration No. 2,534,431 (United States), registered January 29, 2002, for “Computer software programs; namely programs for producing telephone system reports” in Class 9;

“Business services, namely, telephone management and accounting report services; computerized database management services; marketing research services; conducting marketing studies; telemarketing services; data processing services in the fields of internal telecommunication systems and information management systems; business consulting services in the fields of internal communication systems and information processing and management systems; account management services in the fields of internal telecommunication systems; telecommunication billing; generating reports detailing customer usage of telecommunications equipment; providing outsourced customer support services for others in the nature of information management and answering customer inquiries through telephonic, electronic, and worldwide computer network-based means” in Class 35;

“Computer services, namely e-mail response services; telecommunication message processing services provided by means of a world wide computer network; e-mail, voicemail, cellular telephone, long-distance telephone, facsimile transmission; cellular telephone communication services” in Class 38;

“Custom computer system analysis, design and development; computer software design services and consulting services relating thereto” in Class 42.

CONVERGYS—Registration No. 2,520,504 (United States), registered December 18, 2001, for “Computer software programs; namely programs for producing telephone system reports” in Class 9;

“Business services, namely, telephone management and accounting report services; computerized database management services; marketing research services; conducting marketing studies; telemarketing services; data processing services in the fields of internal telecommunication systems and information management systems; business consulting services in the fields of internal communication systems and information processing and management systems; account management services in the fields of internal telecommunication systems; telecommunication billing; generating reports detailing customer usage of telecommunications equipment; providing outsourced customer support services for others in the nature of information management and answering customer inquiries through telephonic, electronic, and worldwide computer network-based means” in Class 35;

“Computer services, namely, e-mail response services; telecommunication message processing services provided by means of a world wide computer network; e-mail, voicemail, cellular telephone, long-distance telephone, facsimile transmission; cellular telephone communication services” in Class 38;

“Custom computer system analysis, design and development; computer software design services and consulting services relating thereto” in Class 42.

Copies of the corresponding Registration Certificates have been provided to the Panel.

The Complainant promotes its mark CONVERGYS globally through advertising in trade magazines, at trade shows and on the Internet; through press releases; and through co-promotions with other companies. The Complainant spends annually over $8 million on advertising and promoting its services under its mark CONVERGYS.

In addition, the Complainant owns over 70 registrations for domain names incorporating the word Convergys. A non-exhaustive schedule of these domain names has been provide to the Panel. The primary website of the Complainant is accessible in English, French, German, Italian, Portuguese and Spanish; and has received more than 61 million visitors worldwide during the last 6 months. A copy of the Internet traffic history of the Complainant’s website “convergys.com” has been provided to the Panel.

In October 2005, the Complainant became aware that the Respondent had registered the domain name at issue. Upon further investigation, the Complainant discovered that the Respondent has a history of searching lists of domain names that are about to expire, and then buys those domains that the Respondent suspects will generate significant Internet traffic, based on the similarity of the domain names of legitimate sites. The Respondent registered the domain name at issue, namely <convergs.com>, a common misspelling of the Complainant’s name “Convergys” one day after it appeared on an expired domains’ list.

On November 7, 2005, the Outside Counsel of the Complainant sent the Respondent a letter via e-mail and regular mail demanding that the Respondent cease using the domain name at issue and transfer it to the Complainant. A copy of this letter has been provided to the Panel.

On November 9, 2005, the Respondent stated in reply, amongst other things, that “we are not a big company but we do not want to lose the domain for nothing. We have been working on a project involving this domain”. A copy of this reply has been provided to the Panel.

On November 15, 2005, the Complainant’s Counsel demanded by letter once again that the Respondent either cancel the ownership of the domain name at issue or agree to assign it to the Complainant. A copy of this letter has been provided to the Panel.

On December 5, 2005, the Respondent replied by e-mail as follows: “I do understand that your client is big corporate and you could win this case at ICANN. It would cost you 1600 United States dollars for an ICANN case. I am willing to co-operate and transfer this domain to you. Can you at least compensate us for our efforts and our domain reg cost etc?” A copy of this e-mail has been provided to the Panel.

On December 21, 2005, the Complainant’s Counsel reiterated by e-mail the demand that the Respondent, having no legitimate ownership interest in the domain name at issue, either cancel ownership of the domain name or agree to assign it to the Complainant. A copy of this e-mail has been provided to the Panel.

Since then, the Complainant’s Counsel has not received any reply from the Respondent.

 

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions:

A.1 The domain name is confusingly similar to a trademark or service mark in which the Complainant has rights;

(Policy, para. 4(a)(i), Rules, paras. 3(b)(viii), (b)(ix)(1))

Convergys is a coined word having no meaning apart from its use as Complainant’s trademark. Coined terms with no common meaning enjoy the strongest protection accorded a trademark.

The second-level domain of Respondent’s <convergs.com> domain name is virtually identical to Complainant’s coined mark CONVERGYS. The domain names differ from Complainant’s trademark by only one letter: the deletion of the letter “y”. Clearly, as supported by the examples in Annex 9, “convergs” is a common misspelling or a foreseeable mistyping of “Convergys”, especially for one unfamiliar with Complainant’s website or unsure of the proper spelling of Complainant’s name.

The addition of the generic top-level domain (gTLD) “.com” is without legal significance from the standpoint of comparing the disputed domain name to Convergys since use of a gTLD is required of domain name registrants.

Complainant respectfully submits that it has established confusing similarity, the first element of its claim.

A.2 The Respondent has no rights or legitimate interests in respect of the domain name;

(Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2))

Complainant’s use of its CONVERGYS trademark predates Respondent’s registration of the <convergs.com> domain name. Complainant is the only entity with rights in this coined mark.

Respondent has no legitimate interest in the <convergs.com> domain name. Respondent is not a licensee of, or otherwise currently affiliated with, Convergys. Respondent’s name does not include the word “Convergys” and Respondent’s business has nothing to do with the links relating to the products and services currently located on the “convergs.com” domain, other than Respondent profits, in bad faith, from misdirecting those searching for information on Convergys to those competitive links.

Because there is no legitimate reason for Respondent to have chosen Complainant’s coined trademark for Respondent’s second-level domain, Complainant has established the second element of its claim.

A.3 The domain name was registered and is being used in bad faith;

(Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3))

Respondent registered the <convergs.com> domain name in an effort to capitalize on the recognition of the CONVERGYS mark by those seeking outsourced customer care, human resources, and billing services, and to capitalize from the misdirected traffic resulting from the foreseeable typographical errors made by persons seeking to go to the “www.convergys.com” website.

The multiple sponsored links on the “www.convergs.com” website clearly demonstrate that Respondent set up the website to make money by trading on the CONVERGYS marks. A printout of the “www.convergs.com” website has been provided to the Panel.

Clicking on the “Inquire about this domain” link at the upper right corner of the “www.convergs.com” website leads to a page from “domainsponsor.com” where one can make an offer to purchase the <convergs.com> domain name. A printout of the Domain Sponsor page has been provided to the Panel.

Included in the “Popular Categories” links on the <convergs.com> domain name are links entitled “Convergys”, “Payroll Dept For Convergys”, and “Human Resources”,– all links that refer to or relate to Convergys or its business, but none of which actually take the user to the “www.convergys.com” website.

Indeed, following the “Convergys” link leads viewers to a page with many sponsored links relating to both Convergys and some of its competitors, but none of the links that directly reference Complainant’s Convergys website or business actually take the user to the “convergys.com” website. A printout of this page has been provided to the Panel.

Clicking on the back button returns a user to the first page of Respondent’s “www.convergs.com” website, and also causes a new web page to pop up entitled “Try some of these similar categories!” Clicking on the “Convergys” link on this pop up page leads viewers to the same page, which has multiple links referencing both Convergys and some of its competitors. This pop up page has been provided to the Panel.

Clicking on the “Payroll Dept For Convergys” link leads viewers to a page containing only links to Convergys’ competitors. Clicking on the back button returns a user to the first page of Respondent’s “www.convergs.com” website, and also causes the appearance of the “Try some of these similar categories!” pop up page. Following the Convergys link on that pop up page leads the now-trapped viewer to the same page, which provides links that reference both Convergys and some of its competitors, but with no way to actually get to Complainant’s website. A printout of the “Payroll Dept. For Convergys” page has been provided to the Panel.

Each of the pages reached from the <convergs.com> domain name by clicking a “popular category” link contains “sponsored links”. Respondent makes money every time a lost Internet user follows one of those links. However, none of those links will send the user to the Convergys website, the entity being sought by those lost browsers.

Respondent’s website at “www.convergs.com” was generated, in part, by the Domain Sponsor service. This service customizes web pages to include special sponsored links to products relevant to what the browsers on that site have been looking for. Obviously, browsers at the “www.convergs.com” website have been looking for information about Convergys products and services. Instead of reaching the desired website, those users are misdirected by Respondent, through the use of Domain Sponsor, to Convergys’ competitors and to others who are willing to pay Respondent for the additional traffic. This business model, including the use of “mouse trapping” as described above, is the epitome of bad faith registration and use.

Indeed, as noted in Convergys Corporation v. Juan de la Cruz, WIPO Case No. D2002-0159, “For a distinctive, and apparently unique, name like Convergys, the panelist considers that any such use by a party unconnected with the owner of rights in the name would inevitably cause confusion and potential damage”.

Respondent has registered and is using the <convergs.com> domain name in bad faith to benefit from misdirected traffic in search of information on Convergys and its products and services. Respondent has tailored virtually all of the site to contain links to products and services in competition with Convergys. Respondent directly profits from the traffic he intentionally misdirects.

Respondent’s use of the <convergs.com> domain name to capture customers of Convergys who are seeking Convergys products and services is neither a legitimate, nor good faith, use of this domain. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration under the Policy, paragraph 4(b)(iv). See also Adobe Systems Incorporated v. Domain OZ, WIPO Case No. D2000-0057.

As noted in American Girl, LLC v. Nameview, Inc., 381 F.Supp.2d 876, 879 No. 1, “typosquatting” is the bad faith act of using “misspellings or variations of legitimate domain names in order to trick individuals into viewing unrelated advertisements or websites. Typosquatting is profitable because a website with a domain consisting of a common misspelling of a famous trademark generates Internet traffic and, therefore, advertising revenue”.

Respondent clearly registered the <convergs.com> domain name to typosquat upon the Convergys marks and Convergys’ official website at “www.convergys.com” through which it conducts a significant amount of business.

Because Complainant’s CONVERGYS trademark is a coined mark, because this mark is heavily promoted throughout the world, and because Complainant owns domain name registrations for this mark with other gTLDs, Respondent should have been aware of Complainant’s trademark when Respondent registered the <convergs.com> domain name.

Respondent has indicated, both on his website and by email to Complainant’s representative, that he intends to sell the <convergs.com> domain name for valuable consideration in excess of out-of-pocket expenses. Indeed, it is now clear that Respondent chose this domain for that very purpose.

Because Respondent knew of Complainant’s rights, because Respondent is making no legitimate use of the domain name, and because Respondent is attempting to sell a domain name consisting of Complainant’s coined trademark for an amount in excess of his expenses, Complainant has established Respondent’s bad faith, the third element of its claim.

B. Respondent

The Respondent, having been duly notified of the Complaint and these proceedings, did not reply to the Complainant’s contentions or take any other part in these proceedings.

 

6. Discussion and Findings

To qualify for cancellation or transfer of the domain name at issue, the Complainant must prove each of the following elements of paragraph 4(a) of the Policy, namely:

(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

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

In accordance with paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.

In accordance with paragraph 14(a) of the Rules, in the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by the Rules or the Panel, the Panel shall proceed to a decision on the Complaint; and (b) if a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences as it considers appropriate.

In accordance with paragraph 10(d) of the Rules, the Panel shall determine the admissibility, relevance, materiality and weight of the evidence.

In previous UDRP cases in which the respondent failed to file a response, the panel’s decisions were based upon the complainant’s assertions and evidence, as well as inferences drawn from the respondent’s failure to reply. See The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064; and also Kцstritzer Schwarzbierbrauerei v. Macros-Telekom Corp, WIPO Case No. D2001-0936.

Nevertheless, the Panel must not decide in the Complainant’s favor solely based on the Respondent’s default (Cortefiel S.A. v. Miguel Garcнa Quintas, WIPO Case No. D2000-0140). The Panel must decide whether the Complainant has introduced elements of proof, which allow the Panel to conclude that its allegations are true.

A. Identical or Confusingly Similar

It is established case law that where a domain name incorporates a complainant’s registered mark, this is sufficient to establish that the domain name is identical or confusingly similar for the purposes of the Policy. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.

The domain name at issue incorporates essentially the trademark CONVERGYS, which is owned and has been commercially used and promoted globally by the Complainant in and for the purposes of its business and the sale of its products as a trademark since it commenced operations in 1998. Although the domain name at issue is not identical in spelling, lacking only the single letter ‘Y’, this, in the view of the Panel, makes no difference. Indeed, the Panel accepts the Complainant’s contention that, phonetically speaking, the words ‘convergys’ and ‘convergs’ sound the same. And, in view of this, the Panel agrees with the Complainant that misspelling of a coined word, such as ‘convergys’, on the part of an Internet user may well occur when seeking to access the Complainant’s website. Furthermore, the Complainant has adduced evidence of examples of such misspellings in commercial practice. The Panel also accepts and recognizes that the Complainant’s trademark CONVERGYS is well known in respect of the range of products and services which it identifies. Thus, there is a clear misuse on the part of the Respondent of the Complainant’s trademark, and such use is also in breach of the Policy.

The Panel further agrees with the Complainant’s contention that the addition of the generic top-level domain “.com” is also without any legal import on the question of similarity. Thus, the domain name at issue, if not identical, is certainly confusingly similar.

In view of this, the Panel finds that the domain name registered by the Respondent is identical or confusingly similar to the trademark CONVERGYS, in which the Complainant has clearly demonstrated, to the satisfaction of the Panel, that it has well-established and commercially valuable rights through registration and commercial use.

B. Rights or Legitimate Interests

In order to determine whether the Respondent has any rights or legitimate interests in respect of the domain name (paragraphs 3(b)(ix)(2) of the Rules and 4(c) of the Policy), attention must be paid to any of the following circumstances in particular but without limitation:

- Whether before any notice to the Respondent of the dispute, there is any evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;

- Whether the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights;

- Whether the Respondent is making a legitimate non commercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue.

There is no evidence to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the domain name at issue. Indeed, the Complainant’s use of its trademark predates by several years the Respondent’s registration of the domain name, which essentially incorporates the Complainant’s mark. Thus, the Complainant is the only entity with rights in this name.

In particular, the Panel finds no evidence that the Respondent has used, or undertaken any demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services. On the contrary, the Respondent has used the domain name at issue for a website that may well be confused with those of the Complainant.

Likewise no evidence has been adduced that the Respondent has commonly been known by the domain name; nor is making a legitimate non-commercial or fair use of the domain name; nor has the Respondent been authorized or licensed by the Complainant to use the Complainant’s trademark CONVERGYS as part of the domain name at issue. Indeed, the Respondent is not affiliated with the Complainant; neither has the Respondent’s business any legitimate connection with the Complainant’s business.

Furthermore, the adoption by the Respondent of a domain name virtually identical to the Complainant’s trademark inevitably leads to the diversion of the Complainant’s consumers to the Respondent’s website (see further on this point below) and the consequential tarnishing of the Complainant’s trademark. In other words, the Respondent is trading for commercial gain on the good name and worldwide fame and reputation of the Complainant’s business and trademark and unfairly attracting to its own business and activities the substantial goodwill that the Complainant has established over several years in its name and mark, evidence of which has been provided to the Panel, without any right or legal justification for doing so.

Therefore, the Panel concludes that the Respondent has neither rights to nor legitimate interests in the domain name at issue.

C. Registered and Used in Bad Faith

Regarding the bad faith requirement, paragraph 4(b) of the Policy lists four examples of acts, which prima facie constitute evidence of bad faith. However, this list is not exhaustive, but merely illustrative. See Nova Banka v. Iris, WIPO Case No. D2003-0366.

Paragraph 4(b)(iv) of the Policy is particularly relevant to the present case and provides that there is evidence of bad faith in the following circumstances:

“(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 the respondent’s website or location or of a product or service on its website or location.”

Based on the evidence provided in the case file, the Panel agrees with the Complainant’s contention that the Respondent by registering the domain name at issue is trading on the Complainant’s valuable goodwill established in its trademark CONVERGYS over several years. Indeed, in the absence of any evidence to the contrary, of which none is forthcoming on the part of the Respondent, the Respondent’s registration of the domain name at issue would not appear to be accidental, but deliberate and calculated to exploit the Complainant’s renown in its particular business field.

Again, by registering and using the domain name at issue essentially incorporating the Complainant’s trademark, CONVERGYS, the Respondent is misleading Internet users and consumers into thinking that it is, in some way or another, connected, sponsored or affiliated with the Complainant and its business, or the Respondent’s activities are approved or endorsed by the Complainant, none of which, in fact, is the case.

The Respondent appears to be trading on the Complainant’s goodwill and reputation, which the Complainant has built up over several years. This, without any explanations by the Respondent to the contrary, of which none have been forthcoming, constitutes bad faith. See the case of eBay Inc. v. Sunho Hong, WIPO Case No. D2000-1633, where it was stated that:

“The Domain Name consists of the EBAY trademark plus the addition of the country name Korea. Because the Domain Name incorporates the identical EBAY trademark, a consumer or user of the Internet viewing a website located at the “www.ebaykorea.com” domain address would be likely to assume that the website or operator is somehow sponsored by or affiliated with eBay, when it is not.”

The Panel notes and agrees with the Complainant’s contentions that the Respondent has registered and is using the domain name at issue to benefit from so-called ‘typosquatting’ (as defined above), through which the Respondent unfairly attracts and benefits from misdirected traffic to the Respondent’s website from Internet users seeking information on the Complainant and its products and services. This situation and the links on the Respondent’s website to products and services which compete with those of the Complainant, and, indeed, the way in which the Respondent’s website is generally organized (including so-called ‘mouse trapping’ (as defined above)), all of which has been described in some detail above by the Complainant and evidenced to the satisfaction of the Panel, also amounts to bad faith on the part of the Respondent.

Furthermore, the attempt by the Respondent to be paid in excess of expenses by the Complainant for the transfer of the domain name at issue (as mentioned above) is further evidence of bad faith on the part of the Respondent.

Finally, the failure of the Respondent to reply to the Complainant’s Outside Counsel’s reiterated demand of December 21, 2005 (the terms of which are cited above) or to file any answer to the present Complaint or otherwise participate in the present proceedings, in the view of the Panel, also indicates bad faith on the part of the Respondent.

Therefore, for all the above reasons, the Panel concludes that the Respondent has registered and is using the domain name at issue in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <convergs.com> be transferred to the Complainant.


Ian Blackshaw
Sole Panelist

Dated: February 17, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0043.html

 

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