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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Deutsche Telekom AG v. Domibot (Deutschtelekom-com-dom)

Case No. D2006-0154

 

1. The Parties

The Complainant is Deutsche Telekom AG, Bonn, Germany, represented by Lovells, Germany.

The Respondent is Domibot (Deutschtelekom-com-dom), Colinas Monte, Caracas, Venezuela.

 

2. The Domain Name and Registrar

The disputed Domain Name <deutschtelekom.com> is registered with BelgiumDomains, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 3, 2006. On February 6, 2006, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name at issue. On February 27, 2006, BelgiumDomains, LLC 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 10, 2006. 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 March 15, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 4, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 5, 2006.

The Center appointed Kristiina Harenko as the sole panelist in this matter on April 11, 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 owner of the International Trademark DEUTSCHE TELEKOM, registered under the Madrid System for the International Registration of Marks with registration no. 661455 and with a priority date of February 20, 1996, which is registered for several goods and services.

In addition, the Complainant is the holder of the European Community trademark DEUTSCHE TELEKOM, registration no. 214643, with a priority date of April 1, 1996, of the United States trademark DEUTSCHE TELEKOM, registration no. 2443607, with a priority date of February 20, 1996, and of the German trademark DEUTSCHE TELEKOM, registration no. 39607816, with a priority date of February 20, 1996.

In August 2005 the disputed Domain Name <deutschtelekom.com> was registered to Ko Youngho of South Korea. In February, 2006, the Domain Name was transferred to the Respondent.

 

5. Parties’ Contentions

A. Complainant

The Complainant is Europe’s largest telecommunications company and one of the worldwide engines of innovation in the industry. The Complainant covers the entire spectrum of modern telecommunications. This makes Deutsche Telekom one of the few telecommunications companies in the world to offer genuinely integrated solutions from a single source. The Complainant is continuously driving ahead the internationalization of the Deutsche Telekom Group with a variety of strategic shareholdings. The Complainant has established presence in the major economic centers of the world, serving customers in more than 65 countries around the globe through regional units. The name “Deutsche Telekom” is universally and internationally recognized and relied upon as identifying the Complainant.

The trademark upon which the Complaint is specifically based is the International Trademark DEUTSCHE TELEKOM. The Complainant uses the trademark DEUTSCHE TELEKOM on a widely international basis for all its activities.

The Complainant is also the registered owner of the domain names <deutshetelekom.de>, <deutsche-telekom.de>, <deutschetelekom.net>, <deutsche-telekom.net>, <deutschetelekom.com> and <deutsche-telekom.com>.

The domain name <deutschtelekom.com> is confusingly similar to the Complainant’s trademark DEUTSHE TELEKOM because the wording is identical apart from one missing letter “e”. Especially internet users who are not familiar with German spelling and pronunciation are very likely to mistakenly type DEUTSCHTELEKOM instead of DEUTSCHETELEKOM. Therefore this is a typical case of “typo-piracy”.

The Complainant contends that the Respondent does not have any rights or legitimate interests to the Complainant’s trademark. The Respondent is not, and never has been, a representative or licensee of the Complainant, nor is the Respondent otherwise authorized to use the Complainant’s marks.

The Respondent does not use the domain name <deutshtelekom.com> for a bona fide offering of goods or services and is not making a legitimate non-commercial or fair use of it. The domain name <deutschtelekom.com> has previously been linked to a German website upon which the domain was offered for sale and upon which sponsored links were displayed. Presently an error message shows up when entering the domain name as the URL address.

The Complainant contends that the disputed domain name has been registered and used in bad faith. When registering the domain name the Respondent had knowledge of the Complainant’s trademarks and business names. This is evident given by the fame of the Complainant’s trademarks in many markets including Venezuela. The Complainant refers to previous panel decisions Red Bull GmbH v. Harold Gutch, WIPO Case No. D2000-0766; British Sky Broadcasting Group plc, v. Mr. Palbo Merino and Sky Services S.A., WIPO Case No. D2004-0131; Deutshe Telekom AG v. Britt Cordon, WIPO Case No. D2004-0487; and PepsiCo, Inc. v. Paul J. Swider, WIPO Case No. D2002-0561.

The disputed domain name has also been used in bad faith by the Respondent. The disputed domain name is not in active use but the Complainant refers to the previous Telstra case (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003) where the panel set out convincingly that the provisions in paragraph 4(b) of the Policy support the assumption that passive use can also be in bad faith. The Complainant also refers to Atlantic Recording Corporation v. Paelle International, WIPO Case No. D2001-0065, where the panel stated that the hypotheses identified in paragraph 4(b) are not limitative. Accordingly it is possible that respondent’s inactivity or passive holding of the domain name may prove that the domain name has been registered and is being used in bad faith.

The Complainant contends that in evaluating of all of the circumstances in the underlying case the following circumstances shall be taken into consideration:

1) The Complainant’s trademark DEUTSCHE TELEKOM is widely known, as evidenced by its substantial use and reputation throughout the world.

2) Since the domain name remains unused, the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name.

3) As can be seen from the prior use of the disputed domain name the Respondent can easily use the domain name for sponsored links or in competition with the Complainant’s products (see Lowen Corporation d/b/a Lowen Sign Company v. Henry Chan, WIPO Case No. D2004-0430).

4) The Complainant has made proper substantial steps towards protecting its trademark with a view to conducting business in many other jurisdictions. The Complainant has contacted the former registrant twice who has then transferred the domain name to another entity. Further, the Complainant has contacted the Respondent, who has also never reacted. This is also considered as a prima facie presumption of bad faith (see Encyclopaedia Britannica, Inc. v. John Zuccarini and the Cupcake Patrol a/ka Country Walk, WIPO Case No. D2000-0330, and eBay Inc. v. RePoCo, WIPO Case No. D2003-0808.).

5) The panel has held in Telstra Corpoation Limited v. Barry Cheng Kwok Chu, WIPO Case No. D2000-0423 that already the propositions 1) and 4) sufficed for prima facie proof against the Respondent.

The Complainant concludes that on the above-mentioned grounds the disputed domain name was registered and is used in bad faith.

B. Respondent

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

 

6. Discussion and Findings

Pursuant to the Policy, Complainant must prove the following elements.

(i) The domain name is identical or confusingly similar to a trademark in which it holds rights, and

(ii) Respondent has no right or legitimate interests in the domain name, and

(iii) The domain name was registered and used in bad faith.

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

In view of Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules.

A. Identical or Confusingly Similar

The Complainant has proved that it has extensive rights in the trademark DEUTSHE TELEKOM throughout the world.

The disputed domain name is <deutschtelekom.com>. The relevant part of this domain name is “deutschtelekom”. This part is identical to the Complainant’s trademark DEUTSHE TELEKOM apart from one missing letter “e”. Internet users who are not familiar with German spelling and pronunciation are very likely to mistakenly type DEUTSCHTELEKOM instead of DEUTSCHETELEKOM. This is a typical case of “typo-piracy”. The Panel finds that the domain name is confusingly similar to the trademark DEUTSHE TELEKOM.

B. Rights or Legitimate Interests

The Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the domain name. In light of the case established by the Complainant, and especially the fact the Complainant has not licensed or otherwise authorized the Respondent to use its trademark DEUTSCHE TELEKOM, and based on the case file the Panel finds that the Respondent has no rights or legitimate interest in the disputed domain name.

C. Registered and Used in Bad Faith

Given the Complainant’s trademark registrations for the word DEUTSHE TELEKOM, and the trademark’s wide reputation in many countries, including also Venezuela, as evidenced by the Complainant, it is difficult to conceive of a plausible situation in which the Respondent could legitimately use the domain name <deutschtelekom.com>. It is not possible to conceive of a plausible situation in which the Respondent would have been unaware of this fact at the time of registration. The Panel thus concludes that the domain name <deutschtelekom.com> has been registered by the Respondent in bad faith.

The disputed domain name is not in active use and does not resolve to a website or other on-line presence. The Panel notes that in accordance with former UDRP decisions “passive holding” of a domain name can constitute bad faith use. The question then arises whether there are such circumstances in the underlying case that evidences passive use in bad faith.

The Complainant’s trademark DEUTSCHE TELEKOM is widely known, as evidenced by its substantial use and reputation throughout the world. Since the domain name remains unused, the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name. The Complainant has contacted the former registrant twice who has then transferred the domain name to another entity. Further, the Complainant has contacted the Respondent, who has never reacted. These facts suffice to establish a prima facie case against the Respondent.

The Panel finds that the Complainant has proved that the Respondent has registered and used the domain name <deutschtelekom.com> in bad faith. The Respondent has not responded to the Complaint and has thus not demonstrated any rights and legitimate interests in the domain name <deutschtelekom.com>.

 

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, <deutschtelekom.com> be transferred to the Complainant.


Kristiina Harenko
Sole Panelist

Dated: April 25, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0154.html

 

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