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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Philadelphia Health & Education Corporation d/b/a Drexel University College of Medicine and affiliate Drexel University v. David Ehrlich

Case No. D2006-0118

 

1. The Parties

The Complainant is Philadelphia Health & Education Corporation d/b/a Drexel University College of Medicine and affiliate Drexel University, Philadelphia, Pennsylvania, United States of America, represented by Ballard Spahr Andrews & Ingersoll, LLP, United States of America.

The Respondent is David Ehrlich, Boston, Massachusetts, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <drexelmed.com> is registered with Register.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 26, 2006. On January 27, 2006, the Center transmitted by email to Register.com a request for registrar verification in connection with the domain name at issue. On January 27, 2006, Register.com 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 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 February 2, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 28, 2006. On March 2, 2006, the Center received an email from Respondent requesting an extension of the deadline to respond to the Complaint on the basis that he had not received the earlier notification of the Complaint because the email address listed in the WHOIS record for the domain name in dispute “is not my primary account and is rarely checked.” The Complainant objected to the requested extension on the grounds that Complainant had properly complied with the Policy’s notification requirements by serving a copy of the Complaint with exhibits by email and Federal Express to the Respondent’s email and physical address indicated in the WHOIS record for the disputed domain name. Neither the e-mail nor the Federal Express package was returned to Complainant. On March 9, 2006, the Center advised Respondent that the Complaint and notification of default had been successfully transmitted electronically to the email address pursuant to the Policy. The Center advised Respondent that, although the deadline would not be extended, he could file a late response and that it would be at the sole discretion of the Administrative Panel to decide whether or not to consider such a late filing. Respondent did not file a late response to the Complaint.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on March 16, 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 following facts are derived from the Complaint and its annexed documents. The Respondent did not respond to the Complaint and has not contested any of these facts.

Drexel University, located in Philadelphia, Pennsylvania, was founded in 1891. On November 10, 1998, Drexel University assumed operation of Philadelphia Health & Education Corporation d/b/a MCP Hahnemann University. In July 2002, Drexel University formalized its relationship with Philadelphia Health & Education Corporation, which officially became a non-profit equivalent of a subsidiary of Drexel University. Shortly thereafter, the Philadelphia Health & Education Corporation changed its d/b/a name to “Drexel University College of Medicine.” Since 1891, Drexel University has continuously offered educational services, namely, undergraduate and graduate education in the nature of courses and classes. Since 1998, the Philadelphia Health & Education Corporation has continuously offered medical services and medical education services.

Complainant has employed DREXEL as its name and mark since 1891. Complainant has secured a U.S. Trademark Registration for DREXEL (Reg. No. 2965544) with a first use date of 1891. Complainant has registered numerous domain names incorporating its DREXEL name and mark, including <drexelmed.edu>. The majority of Complainant’s registered domain names incorporating its DREXEL name and mark were registered by Complainant prior to Respondent’s registration of <drexelmed.com>. Complainant is among the top 5 private, non-profit, national doctoral/research universities in the United States. The DREXEL name and mark is well-known throughout the United States and the world on a number of websites, including “www.drexel.edu”, “www.drexel.com”, “www.drexelmed.edu”, and “www.drexeldragons.com”.

On or about April 30, 2001, Respondent received a letter of acceptance from Complainant on which the DREXEL name and mark was clearly displayed, and Drexel University’s relationship with the Philadelphia Health & Education Corporation as operator was clearly indicated.

Respondent began his first year of medical school at the Philadelphia Health & Education Corporation operated by Drexel University on August 27, 2001. On February 12, 2002, during his first year at Philadelphia Health & Education Corporation operated by Drexel University, Respondent registered the domain name <drexelmed.com>. On May 20, 2005, Respondent graduated from Philadelphia Health & Education Corporation, d/b/a Drexel University College of Medicine.

As a student of the medical school operated by Drexel University, Respondent was aware of Complainant’s ownership, right and interest in the DREXEL name and mark when he registered the <drexelmed.com> domain name.

Respondent’s website corresponding to DREXELMED.COM is entitled “Welcome to Dr. Exel’s Medical Practice,” and states that “coming soon” will be “The latest in medical information.” The website offers links to “www.WebMd.com“ “www.leakyfaucet.com”, and “www.greatdocs.org”. Respondent’s website also features a large banner advertisement for Register.com. The banner advertisement changes from one visit to the next: it promotes Register.com, Citi credit cards, LogoYes, and Monster.com. Dr. Exel appears to be a fictitious doctor, as Respondent’s name is David Ehrlich and Respondent does not do business under the name Dr. Exel.

On May 5, 2005, Complainant sent a cease and desist letter to Respondent in the form of an e-mail notifying Respondent of Complainant’s rights in its name and requesting that Respondent terminate use of Complainant’s name and mark. On August 2, 2005, having received no response to its earlier letter, Complainant’s counsel sent a second cease and desist letter to Respondent reiterating Complainant’s rights in its name and mark and requesting that Respondent execute an attached transfer agreement in exchange for $2,500 in an effort to amicably resolve the dispute. In a letter dated August 15, 2005, Respondent refused to transfer the domain name unless Complainant paid Respondent $9,800.

On August 29, 2005, Complainant’s counsel made a final unconditional offer to Respondent to resolve the domain name dispute for $3,000. Respondent did not accept this offer by the deadline stated in the letter of September 5, 2005.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that Respondent’s registration and use of the domain name constitutes willful and intentional infringement of Complainant’s rights in the DREXEL name and mark, and is continuing in spite of Respondent’s constructive and actual knowledge of Complainant’s rights.

Complainant contends that the <drexelmed.com> domain name is identical and confusingly similar to Complainant’s mark DREXEL for medical and medical education services in which the Complainant has rights. The <drexelmed.com> domain name contains the DREXEL mark with only the additional abbreviation “med,” short for “medical” or “medicine,” and does not serve to distinguish the domain name from Complainant’s mark because Complainant is a medical school and performs medical services.

Complainant further contends that Respondent has no rights or legitimate interests in respect of the <drexelmed.com> domain name and that Respondent has registered and used the <drexelmed.com> domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:

(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) that the Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The disputed domain name incorporates Complainant’s registered DREXEL mark in its entirety. The addition of “MED,” an abbreviation for the generic term “medical” or “medicine” does not alleviate the likelihood of confusion between Complainant’s mark and the term DREXELMED in the domain name. The fact that the <drexelmed.com> domain name resolves to a website that purports to be the website of a fictitious “Dr. Exel,” does not alleviate the likelihood of confusion. By the time internet users arrive at the Website, they have already been confused by the similarity between the domain name and the Complainant’s mark.

The Panel finds that the disputed domain name is confusingly similar with Complainant’s registered DREXEL mark.

B. Rights or Legitimate Interests

Respondent registered the <drexelmed.com> domain name on February 12, 2002.

There is no evidence of record that Respondent has ever been commonly known by the name DREXEL, DREXEL MED or Dr. EXEL. There is no evidence of record that the Respondent owns or has claimed to own any trademark or service mark rights in the names DREXEL, DREXEL MED or Dr. Exel.

Although Respondent’s website purports to be “Dr. Exel’s Medical practice,” Respondent’s title and name is not Dr. Exel, it is Dr. David A Ehrlich. Respondent has not put forward any evidence of a legitimate business interest in the name Dr. Exel or DREXEL. Respondent graduated from Drexel University College of Medicine in the name of David A. Ehrlich, and signed his August 15, 2005 letter to Complainant as David A. Ehrlich, M.D. Respondent is currently a first year resident at New York University using the name Dr. David Ehrlich. There is no evidence of record that Respondent operates a medical practice, or any other business, using the name Dr. Exel.

The disputed domain name resolves to a general information website with links to other unrelated third-party websites. Providing links to unrelated websites does not constitute use of a domain name in connection with a bona fide offering of goods and services. There is no bona fide offering of goods or services where a Respondent’s website is merely diverting internet traffic to unrelated commercial sites in exchange for linking fees. Indeed, collecting linking fees or “click through” advertising revenue by using a domain name that incorporates Complainant’s name and mark in an attempt to divert Internet traffic is evidence of bad faith use of a domain name, which can not establish legitimate interest.

Respondent is also not making a legitimate non-commercial fair use of the <drexelmed.com> domain name because registering a trademark as a domain name and then offering to sell the name to the rightful trademark owner constitutes commercial use. On August 15, 2005, Respondent offered to sell the <drexelmed.com> domain name to Complainant for $9,800.

The Panel finds that Respondent does not have any rights or legitimate interests in the domain name and that Complainant has satisfied its burden of proof under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Under paragraph 4(a)(iii) of the Policy, there are four non-exclusive circumstances that, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name. These factors include, among others (1) circumstances indicating that the domain name was registered or acquired primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the owner of the trademark or service mark or to a competitor of the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name, or (2) whether by using the domain name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website or other online 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 of a product or service on the Respondent’s website or location.

Drexel University assumed operation of the Philadelphia Health & Education Corporation, d/b/a MCP Hahnemann University in November 1998. Respondent began his first year of medical school at the Philadelphia Health & Education Corporation operated by Drexel University on August 27, 1002. Respondent’s acceptance letter to medical school from Complainant clearly displays the DREXEL name and mark. At the time Respondent registered the <drexelmed.com> domain name (February 12, 2002), Respondent was seven months into his first year of medical school at Complainant’s medical school.

The record indicates that Respondent knew of Complainant’s rights in the DREXEL name and mark when he registered the domain name because Respondent was a student at Complainant’s medical school when he registered the domain name.

Complainant sent three letters to Respondent demanding that Respondent immediately transfer the <drexelmed.com> domain name to Complainant, but Respondent demanded $9,800 to transfer the domain name to Complainant, an amount far in excess of Respondent’s out-of-pocket costs directly related to the domain name.

Respondent has also created a fictitious doctor, Dr. Excel, created out of Complainant’s DREXEL mark, whose services are advertised on the website located at the domain name. Respondent is not known as Dr. Excel and does not practice medicine as Dr. Exel. Rather, Respondent is using the domain name <drexelmed.com> to attract internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s DREXEL mark so that Internet users will access links advertised on Respondent’s website and generate link fees for Respondent.

The Panel concludes that Complainant has met its burden under paragraph 4(a)(iii) of the Policy of establishing Respondent’s bad faith registration and use of the Domain Name.

 

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 <drexelmed.com> be transferred to the Complainant.


Lynda J. Zadra-Symes
Sole Panelist

Dated: April 3, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0118.html

 

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