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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Ibeo Automobile Sensor GmbH v. Netico Inc.

Case No. D2006-0064

 

1. The Parties

The Complainant is Ibeo Automobile Sensor GmbH, Hamburg, Germany, represented by Christoph Ludewigt of Sick AG, Germany.

The Respondent is Netico Inc., Las Vegas, United States of America, represented by Roger H. Doumanian, Esq., United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <ibeo.com> (the “Domain Name”) is registered with eNom (the “Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2006. On January 17, 2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On January 18, 2006, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint together with the amendment to 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 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 13, 2006. The Response was filed with the Center on February 11, 2006.

The Center appointed Bernhard F. Meyer-Hauser as the sole panelist in this matter on March 6, 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 a member of the SICK Group, a leading developer and manufacturer of optoelectronic sensor devices for factory and process automation for a wide variety of industries. The Complainant is a 90% subsidiary of the parent company SICK AG. Complainant was founded in 1998, as a spin-off of SICK|IBEO GmbH (formerly IBEO GmbH) which is a 100% subsidiary of SICK AG. SICK|IBEO GmbH was founded in 1979, and develops and produces since then laser scanners for different industrial purposes.

SICK AG registered the German trademark “IBEO” on October 19, 1983. The Complainant has full rights to use this trademark. The Complainant registered the trademarks “IBEO on board” in Europe, Switzerland, Japan and USA and “IBEO Automobile Sensor” in Germany between 2003 and 2005. The mark IBEO represents the initials of the German description of the business “Ingenieur Bьro fьr Elektronik und Optik”. The English translation is “Engineering Bureau for Electronics and Optics”.

The Complainant owns and operates a website at “www.ibeo-as.de” and <www.ibeo-as.com>. It also co-owns the website “www.ibeo.de” together with SICK|IBEO GmbH.

Respondent is in the business of developing websites that offer Internet related services. It operates several websites.

Respondent registered the disputed Domain Name on June 13, 2001.

 

5. Parties’ Contentions

A. Complainant

The Complainant objects to the use of the Domain Name by the Respondent and bases its Complaint on the following grounds:

1. The Domain Name is identical and confusingly similar in their substantive part to the trademark in which the Complainant has rights.

2. The Respondent has no rights or legitimate interests in respect of the Domain Name:

a) the Respondent has never been authorized by the Complainant to use the IBEO trademark.

b) the Respondent has not been commonly known by the Domain Name or any variation of it.

c) the Respondent has shown no demonstrable use or preparation of use of the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services.

3. The Domain Name was registered and is being used in bad faith:

a) the Respondent aims to register domain names which may be used by trademark owners;

b) the Respondent has registered a vast amount of domain names which are obviously offered for sale rather than used with a legitimate business interest;

c) there is no process of developing the website “www.ibeo.com”.

The Complainant requests the Panel to order a transfer of the Domain Name from the Respondent to the Complainant.

B. Respondent

The Respondent submitted the following responses to the statements of the complaint:

1. the Complainant intends to protect the full terms “IBEO on Board” and “IBEO Automobile Sensor” rather than the term “IBEO”;

2. the Respondent is not using the Domain Name to compete with or sell products or services similar to that of the Complainant;

3. the Respondent has spent valuable time and money in preparing to launch a Domain Registry Service at the Domain Name;

4. the Respondent offers a series of domain registration and web hosting services and uses short, easy to remember 4-letter acronyms to make access to the websites simple for clients;

5. the Respondent registered the Domain Name in good faith and intends to use the disputed Domain Name as an online business to provide domain registration services;

6. the Respondent is making legitimate commercial use of the Domain Name, without intent for commercial gain by misleadingly diverting consumers, or to tarnish the trademarks or service marks at issue;

7. the Respondent is not a competitor of the Complainant. The Respondent did not know of the Complainant until this dispute arose.

The Respondent requests the Panel to make a finding of reverse domain name hijacking.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:

(i) respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

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

(iii) respondent’s domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant showed valid registration of the trademarks “IBEO”, “IBEO on Board” and “IBEO Automobile Sensor”, whereas “IBEO” is the only distinctive word of Complainant’s trademarks. The trademark “IBEO” is identical to the distinctive part of the Domain Name.

The Complainant therefore has fulfilled the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, the following circumstances can demonstrate rights to and legitimate interests of a respondent in a domain name:

(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made 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; or

(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or

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

The Complainant asserts that the Respondent has never been authorized to register the “IBEO” trademark or any combinations thereof.

For demonstrating rights or legitimate interests in the domain name, the Respondent provides the Panel with a sample of the “IBEO.com” logo and a template for the website. However, neither the logo nor the template indicate that the Respondent made these preparations already before this dispute arose. As the template provided by Respondent is very similar to the content of Respondent’s “www.onlo.com” and “www.edot.com” websites, the Respondent could have easily set up the provided template after notice was given to the Respondent of the dispute. In addition, the Domain Name was registered already in June 13, 2001, and it apparently has never been actively used since the registration by Respondent. Thus, the Respondent fails to show sufficient evidence to the Panel that the Respondent used or made demonstrable preparations to use the Domain Name before any notice was given to the Respondent of the dispute in connection with a bona fide offering of goods or services.

The Respondent has not previously been known under the disputed Domain Name.

The Respondent is not making a legitimate non-commercial or fair use of the disputed Domain Name.

For the reasons set forth above, Respondent has no legitimate interest in respect of the Domain Name in the sense of paragraph 4(c) of the Policy.

C. Registered and Used in Bad Faith

According to paragraph 4(b) of the Policy, the Domain Name has been used and registered in bad faith if:

(i) circumstances indicating that Respondent has registered and has 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 Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) Respondent has 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 Respondent has engaged in a pattern of such conduct; or

(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, 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 Respondent’s website or location or of a product or service on its website or location.

Complainant alleges that Respondent registered and used the Domain Name in bad faith.

The Respondent registered around 6450 domain names, among them a vast number of 4-letter domain names which are, with few exceptions, not actively used. Most of Respondent’s domain names refer to the same parking page as the disputed Domain Name does. For inquiries on the domain names, the parking page refers to “www.dnquestions.com” which is, according to the Respondent, an online inquiry website designed to facilitate inquires about domain names registered by Respondent or Respondent’s clients.

However, said practice does not as such warrant a finding of bad faith under the Policy. As stated in Builder’s Best, Inc. v. Yoshiki Okad, WIPO Case No. D2004-0748 in order to find bad faith, “there must be some evidence of knowledge that the Respondent knew the domain name was identical or similar to the Complainant’s mark, not just ‘someone’s’ mark”.

The Respondent contends not to have known of Complainant’s trademark before this dispute arose. This seems credible because the Complainant develops and produces laser scanners for different industrial purposes and Respondent has never been active in this sector. The Complainant is a German based company while Respondent primarily operates in the United States of America. “IBEO” is not a well-known trademark outside of the industrial market. In addition, the “IBEO” trademark was registered in the United states of America after the Domain Name was registered by Respondent. Thus, it seems credible that the Respondent did not register and acquire the Domain Name primarily for the purpose of selling it to this particular Complainant or to a competitor of the Complainant. It also appears that Complainant and Respondent do not compete with each other in goods or services offered. Under the circumstances set forth above, it can not be said that the Respondent intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location. Paragraph 4(b) of the Policy is therefore not fulfilled in this case.

Accordingly, the Panel concludes that the Domain Name <ibeo.com> was not registered in bad faith in terms of paragraph 4(b)(iv) of the Policy.

The Complaint is denied under the Policy due to lack of evidence of bad faith registration. The decision is of course not in any way meant to prejudge or influence an eventual national court proceeding between the parties, which would be conducted under different procedural and substantive rules.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the request for a transfer of the Domain Name is denied. The request for a finding of reverse domain name hijacking is also denied.


Bernhard F. Meyer-Hauser
Sole Panelist

Dated: March 13, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0064.html

 

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