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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Bridgewater Associates, Inc. v. Speedy Web

Case No. D2006-0835

 

1. The Parties

The Complainant is Bridgewater Associates, Inc., United States of America, represented by Baker & McKenzie, United States of America.

The Respondent is Speedy Web, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <bridgewaterassociates.com> is registered with Intercosmos Media Group d/b/a directNIC.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2006. On July 3, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On July 3, 2006, Intercosmos Media Group d/b/a directNIC.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 July 6, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2006.

The Center appointed Richard Hill as the sole panelist in this matter on August 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 owns registered service marks for BRIDGEWATER and has common law rights for the mark BRIDGEWATER ASSOCIATES.

The Complainant registered the disputed domain name on July 28, 1998. The domain registration was continually renewed until July 27, 2005, when, due to an internal oversight, the registration was allowed to lapse. Shortly thereafter, the domain name was registered by the Respondent.

There is no relationship between the Respondent and the Complainant.

The disputed domain name now resolves to a “parked” website which is hosted by <parked.com> and it contains links to advertisements for third party websites offering information and services in the fields of financial planning and investment.

The purpose of this “parking” of the disputed domain name is to generate a profit for the Respondent.

 

5. Parties’ Contentions

A. Complainant

The Complainant alleges that it has been in business since 1975, at first offering risk management and related consulting services to corporate customers. In 1985, the Complainant expanded its services to include portfolio management for institutional investors. Currently, the Complainant is a $150 billion money management firm that ranks as the world’s second-largest manager of hedge funds and related assets.

According to Complainant, since its founding in 1975, it has used BRIDGEWATER ASSOCIATES and BRIDGEWATER as service marks. The Complainant owns registered service marks for BRIDGEWATER covering its financial and investment management services in several countries around the world, including the United States. The Complainant has common law rights in the United States for the mark BRIDGEWATER ASSOCIATES.

The Complainant states that it registered the disputed domain name on July 28, 1998. The domain registration was continually renewed until July 27, 2005, when, due to an internal oversight, the registration was allowed to lapse. Shortly thereafter, the domain name was registered by the Respondent.

The Complainant contends that the contested domain name is obviously identical to the Complainant’s service mark.

And it states that there is no relationship between the Respondent and the Complainant. The Respondent is not licensed by the Complainant nor otherwise authorized to use the Complainant’s marks.

According to the Complainant, the disputed domain name now resolves to a “parked” website which is hosted by <parked.com> and it contains links to advertisements for third party websites offering information and services in the fields of financial planning and investment.

Thus, says the Complainant, the domain name is being used to mislead or divert consumers so as to create an impression of association with the Complainant.

Further, the Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

The Complaint states that, under the policy of the website hosting company <parked.com>, that company will

“… take your domain and find relevant phrases, categories and templates that are related to your domain. We then place these phrases and categories on your domain and once a visitor comes to your domain they will find the content they are looking for. When the visitor clicks out to one of the advertisers, you will be paid for that click.”(emphasis added)

Thus, according to the Complainant, the whole goal of parking the disputed domain name appears to be to generate a profit. The disputed domain name, which was owned by Complainant since 1998, and therefore had a high volume of Internet traffic prior to its acquisition by the Respondent, presents a high probability of generating substantial revenue for the Respondent, without the Respondent making any bona fide offering of any goods or services on the website. In this regard, the disputed domain name is being used to mislead and divert potential customers of the Complainant’s services for commercial gain, in violation of paragraph 4(b) of the Policy.

B. Respondent

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

 

6. Discussion and Findings

The Panel will first address the procedural issues related to the fact that the Respondent has defaulted and then analyse the evidence to determine whether the Complainant has proven, in accordance with article 4.a of the ICANN Policy that:

- The contested domain name is identical or confusingly similar to a trademark in which Complainant has rights,

- The Respondent has no rights or legitimates interests in the contested domain name, and

- The Respondent registered and used the contested domain name in bad faith.

I. The procedural issue related to the default of the Respondent

Since the Respondent has defaulted, this Panel must first determine what the procedural implications are of a default. Should the Complainant automatically prevail, or should the Panel anyway examine the evidence and base its decision on its determination of the relevant facts and laws?

While the Policy, the Rules and the Supplemental Rules that govern these proceedings do not explicitly address this question, they do give some guidance. Notably, article 4(a) of the Policy states:

“In the administrative proceeding, the Complainant must prove that each of these three elements are present.” [emphasis added]

This panel therefore holds that it cannot grant the Complainant’s request automatically, but that it must instead examine the evidence presented to determine whether or not the Complainant has proven its case as required by the Policy.

II. Analysis of the evidence in this case

A. Identical or Confusingly Similar

The Complainant has presented evidence that it owns the rights to the service mark BRIDGEWATER ASSOCIATES and it is obvious that the contested domain name is identical to the Complainant’s mark.

B. Rights or Legitimate Interests

Complainant has argued convincingly that the Respondent’s use of the disputed domain name could lead to consumer confusion. Therefore, the Respondent’s use of the disputed domain name cannot be held to be legitimate in the sense of the Policy. As the panel stated in Motorola, Inc. v. NewGate Internet, Inc., WIPO Case No. D2000-0079 (April 14, 2000):

“… the use of somebody else’s trademark as a domain name (or even as a meta-tag) clearly does not constitute a “bona fide” offering of goods or services when the web site owner has no registered or common law rights to the mark, since the only reason to use the trademark as a domain name or meta-tag is to attract customers who … were looking for the products or services associated with the trademark. Such use of a trademark can create customer confusion or dilution of the mark, which is precisely what trademark laws are meant to prevent. And actions that create, or tend to create, violations of the law can hardly be considered to be “bona fide”.

See also Seiko Kabushiki Kaisha d/b/a Seiko Corporation v. CS into Tech, FA 198795 (NAF December 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).

The Respondent has not responded, therefore it has not argued, much less presented evidence, to indicate that it has any rights to the disputed domain name. In accordance with Rule 14(b), the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. In this case, the Panel draws the inference that the Respondent does not have any rights or legitimate interests in the disputed domain name.

The Panel finds that the Complainant has satisfied its burden of proving that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Complainant states that the disputed domain name points to a web page offering searches related to the Complainant’s business activities, and the Respondent is doing this in order to make a profit, and it presents evidence to support this allegation. The Panel accepts the Complainant’s evidence and allegations.

In light of the above, the Panel agrees with the Complainant’s allegation that the registration and use of the disputed domain name are in bad faith in the sense of the Policy, in particular with respect to 4(b)(iv) of the Policy, which states:

“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location”.

 

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 <bridgewaterassociates.com> be transferred to the Complainant.


Richard Hill
Sole Panelist

Dated: August 16, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0835.html

 

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