юридическая фирма 'Интернет и Право'
Основные ссылки











Яндекс цитирования

Рассылка 'BugTraq: Закон есть закон'



Rambler's Top100



Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Clad Holdings Corporation v. Kentech, Inc, a.k.a. Spiral Matrix a.k.a. Titan Net

Case No. D2006-0837

 

1. The Parties

The Complainant is Clad Holdings Corporation, of Pennsylvania, United States of America, represented by Harris, Wiltshire & Grannis, LLP, United States of America.

The Respondent is Kentech, Inc, a.k.a. Spiral Matrix a.k.a. Titan Net, of Eldoret, Kenya.

 

2. The Domain Names and Registrar

The disputed domain names are:

<all-cladcookware.org>;

<allcladcookware.org>;

<allcladdiscount.org>;

<allcladpan.com>;

<allcladpots.org>;

<discountallclad.org>;

<emerilallclad.com>.

The disputed domain names are 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 names in dispute. 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 7, 2006. In accordance with the Rules, paragraph 5(a), the due date for the Response was July 27, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2006.

The Center appointed Anne-Virginie La Spada-Gaide as the sole panelist in this matter on August 18, 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 active in the manufacture and distribution of cookware and cooking utensils.

The Complainant holds several trademark registrations consisting of or including the terms “all-clad”. In particular, the Complainant holds :

- a U.S. trademark registration no. 2’223’859 (filing date: November 24, 1998) for the word mark ALL-CLAD in international class 21 claiming protection for various cookware items. This mark has been first used in commerce in 1973.

- a U.S. trademark registration no. 2’585’922 (filing date: September 15, 1999) for the word mark ALL-CLAD in international classes 8, 9, and 21 claiming protection for various cookware items. This mark has been first used in commerce in 1998 (classes 8 and 21) and 1999 (class 9).

The Complainant operates a web site under the address “www.allclad.com”.

The disputed domain names were registered between January 2006 and June 2006, in the following order:

<allcladdiscount.org> was registered on January 25, 2006, in the name of Kentech, Inc.

<all-cladcookware.org> was registered on February 4, 2006, in the name of Kentech, Inc.

< allcladpots.org> was registered on February 7, 2006, in the name of Titan Net.

<discountallclad.org> was registered on February 17, 2006, in the name of Titan Net.

<allcladcookware.org> was registered on March 27, 2006, in the name of Kentech, Inc.

<allcladpan.com> was registered on June 6, 2006 in the name of Spiral Matrix.

<emerilallclad.com> was registered on June 6, 2006 in the name of Spiral Matrix.

According to the Whois search results, Kentech, Titan Net and Spiral Matrix all have the same address. The e-mail addresses of the administrative contacts is billing@kenyatech.com or info@kenyatech.com.

The Complainant has submitted printouts showing that the domain names are connected to websites which display a list of links to other websites selling All-Clad products or competing products. For example, the domain name <all-cladcookware.org> leads to a website displaying, among others, the following links and descriptions:

All-Clad Cookware

Distinctive appliance is your one stop source for professional stainless steel cookware and cutlery. Viking, Dacor and all-clad cookware sets. Bosch, Kitchenaid and Viking small appliances.

“www.distinctiveappliance.com”

All Clad Cookware – Bargain Prices

Shop fast, Buy smart, Shopzilla for AllClad Cooking Products and other Cooking and Baking Products. Every product from every store means you get a Bargain Price. Don’t just shop, Shopzilla.

www.shopzilla.com

Almost identical printouts are provided for all other Domain Names, except for <emerilallclad.com>. For this domain name, the printout provided displays links in the form of generic terms or brand names, such as “Emeril Cookware”, “All Clad”, “Cookware set”, “Henckels”, “Steamer” or “Wusthof Cutlery”, to cite a few.

 

5. Parties’ Contentions

A. Complainant

The Complainant is a recognized world leader in the manufacture and merchandizing of cookware and cooking utensils. One major use of the Complainant’s ALL-CLAD mark is on the Complainant’s web site “www.allclad.com”.

All disputed domain names are confusingly similar to the Complainant’s mark, because they differ from the Complainant’s mark only by virtue of the addition of one word. The added words, “cookware”, “pots”, “pan”, “discount” and “emeril”, are all related to the Complainant’s products. The Complainant cites a prior case involving the mark ALL-CLAD in which the domain name <allcladcookware.com> was found to be confusingly similar to the ALL-CLAD trademark (Clad Holdings Corporation v. Administration Local, WIPO Case No. D2005-0124).

The Respondent has no use or legitimate interests in the domain names. The Respondent is not affiliated in any way with the Complainant, and the Complainant has never given any license or consent to use its mark. The Respondent is not using the domain names in connection with a bona fide offer of goods or services or for legitimate non commercial or fair use. The Respondent’s sites have no function other than to divert users to other websites, most of which sell either the Complainant’s merchandise or competing products, giving rise to the inference that the Respondent constructed its sites in order to share in revenues obtained from the diverted traffic, and/or to collect click-through fees and to generate sales revenues for the sites to which users are diverted.

The Respondent has registered and used the domain names in bad faith because there is no doubt that the addition of the words “cookware”, “pots”, “pan”, “discount” and “emeril” to the Complainant’s mark ALL-CLAD creates confusion as to the source, sponsorship, affiliation or endorsement of the Respondent’s websites. This is evidence of bad faith according to paragraph 4(b)(iv) of the Policy.

Also, the Complainant considers that by using domain names to divert users to websites unrelated to the Complainant, the Respondent is plundering the Complainant’s legitimately registered mark for its own illegitimate commercial gain.

Finally, relying on numerous prior UDRP cases involving the Respondent, the Complainant further sets forth that the Respondent is a repeat offender who has engaged into a pattern of registering trademarks of others (Chicago Pneumatic Tool Company v. Kentech, Inc, a.k.a Titan Net, WIPO Case No. D2006-0345; Maxon Motor AG v. Kentech, Ltd., WIPO Case No. D2005-0600; The Sutton Corporation v. Spiral Matrix, WIPO Case No. D2006-0167; Joseph Phelps Vineyards LLC v. NOLDS, Inc., Alternative Identity, Inc., and Kentech, WIPO Case No. D2006-0292; Crйdit Industriel et Commercial S.A. and Confйdйration Nationale du Crйdit Mutuel v. Spiral Matrix, WIPO Case No. D2006-0271; Sociйtй Air France v. Spiral Matrix, WIPO Case No. D2005-1337; Staples, Inc., Staples The Office Superstore, LLC, and Staples Contract & Commercial, Inc. v. Spiral Matrix a/k/a Kenyatech.com a/k/a Kentech.com, WIPO Case No. D2006-0227).

The Complainant consequently requests that the domain names be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

Procedural issues

Three of the disputed domain names were registered in the name of Kentech, Inc., two in the name of Spiral Matrix, and two in the name of Titan Net. The Panel had to verify first that it was proper to file a single complaint in respect of all seven domain names.

According to the Whois search results for the domain names, and the information provided to the Center by the Registrar, Kentech, Inc., Spiral Matrix and Titan Net all have the same street address, i.e. 1st Floor Muya House, Kenyatta Ave., Eldoret, KE 30100, Kenya, and the same P.O. Box number. Moreover, the Complainant has cited prior decisions in which Panels have found Spiral Matrix and Titan Net to be aliases for Kentech (see Sociйtй des Hфtels Mйridien v. Spiral Matrix / Kentech Inc., WIPO Case No. D2005-1196 and Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., WIPO Case No. D2005-0890).

The Panel is accordingly satisfied that Kentech, Spiral Matrix and Titan Net are only different names for one single entity, and that it was proper to file a single complaint against this entity.

Substantive Issues

According to paragraph 4(a) of the Policy, a complainant must assert and prove each of the following:

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

iii) the domain name registered by the respondent has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has established that it owns trademark rights in, among others, the word mark ALL-CLAD in international classes 8, 9 and 21. The relevant registrations were secured well before the Respondent registered the domain names.

All seven disputed domain names reproduce the elements “allclad” or “all-clad”, which are identical or confusingly similar to the Complainant’s mark ALL-CLAD. While the terms “all clad” are not devoid of meaning (they may be understood as meaning “all coated”), they do not seem to be commonly used in modern English. A Google search made by the Panel on the terms “all clad” (between quotation marks and without a hyphen) yielded several pages of results concerning only the Complainant’s goods. The elements “allclad” or “all-clad” may therefore be considered as distinctive.

In six of the domain names, the Respondent has added, before or after “allclad” or “all-clad”, an additional common English word, namely “discount”, “pan”, “cookware”, or “pots”. Those words have no distinctiveness, because they are common and describe the goods sold under the ALL-CLAD mark of the Complainant, or their price. When combined with the distinctive elements “allclad” or “all-clad”, they are not apt to influence significantly the overall impression produced by the domain names. On the contrary, the words “pots”, “pan” and “cookware” only increase the likelihood of confusion with the Complainant’s mark.

In a prior case, the domain name <allcladcookware.com> was found to be confusingly similar to the Complainant’s mark ALL-CLAD (Clad Holdings Corporation v. Administration Local, WIPO Case No. D2005-0124).

The seventh domain name <emerilallclad.com> combines “allclad” with the term “emeril”. This term, which does not appear to have any meaning in English, corresponds to the first name of a chef with whom the Complainant represents to have developed a partnership. A printout of a website with the address www.emerilware.com was submitted with the Complaint, displaying a photograph of a chef, with All-Clad pots and pans in the background. The marks ALL-CLAD METALCRAFTERS & design and EMERILtm are also depicted. While the name “emeril” is distinctive in itself, its presence in the domain name <emerilallclad.com> does not distinguish it sufficiently from the Complainant’s mark. Indeed, both constituents “emeril” and “allclad” can be said to influence to the same extent the impression produced by the domain name, so that the “allclad” element does not fade into the background. Moreover, for consumers who are aware of the partnership between the Complainant and the chef Emeril, the presence of the term “emeril” in the domain name will only reinforce the reference to the Complainant’s mark ALL-CLAD.

The Panel accordingly finds all seven disputed domain names to be confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Complainant represents that it has never authorized the Respondent to use its mark ALL-CLAD in any manner.

The domain names do not correspond to the Respondent’s various names.

In view of the available excerpts of the websites to which the domain names are connected, the Respondent is not making a legitimate non commercial or otherwise fair use of the domain names. Nor does the Respondent appear to be using the domain names in relation with a bona fide offering of goods or services. Indeed, nothing indicates that the Respondent itself might be in the business of selling ALL-CLAD cookware. The Respondent only appears to provide links leading to websites unrelated to the Respondent where ALL-CLAD products or competing products may be purchased.

According to the Rules, paragraph 14(b), the Panel may draw from the Respondent’s default the inferences that it considers appropriate. As the Respondent has elected not to submit any response to the Complaint, the Panel infers from the Respondent’s silence and from the evidence submitted with the Complaint that the Respondent can claim no right or legitimate interest in respect of the domain names.

C. Registered and Used in Bad Faith

It is obvious to the Panel that the Respondent knew of the Complainant’s mark and did not reproduce it in the domain names by coincidence. Indeed, the combination of the elements “all-clad” or “allclad” with terms related to cooking such as “pots”, “pan” and “cookware” shows that the Respondent was aware of the Complainant’s business.

Moreover, it can be inferred from the evidence that the Respondent tried to attract consumers seeking the Complainant’s official website to websites from which they could be diverted to on-line locations without any relation to the Complainant. Consumers could mistakenly believe such on-line locations to be endorsed by the Complainant in view of the fact that the Complainant’s original goods are offered there. It can be reasonably assumed that the Respondent’s purpose was to profit from the traffic diverted from the Complainant’s website by means of paid for links or by collecting click-through fees.

This behavior amounts to registration and use of the domain names in bad faith in accordance with paragraph 4(b)(iv) of the Policy. According to this provision, a domain name is used and registered in bad faith when the Respondent intentionally attempts to attract Internet users for commercial gain to its website or other on-line locations by creating a likelihood of confusion with the Complainant’s mark as to the sponsorship or endorsement of such websites.

Finally, the Complainant cites several prior cases involving the Respondent under one or the other of its aliases. In each case, the Panels found that the Respondent had used and registered the disputed domain names in bad faith and ordered that they be transferred to the Complainant or cancelled (see for example Sociйtй des Hфtels Mйridien v. Spiral Matrix / Kentech Inc., WIPO Case No. D2005-1196, involving twenty domain names, and Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., WIPO Case No. D2005-0890, involving twenty-two domain names). The Panel consequently finds that the Respondent has engaged into a pattern of registering domain names confusingly similar to trademarks of third parties, within the meaning of paragraph 4(b)(ii) of the Policy.

 

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 names:

<all-cladcookware.org>;

<allcladcookware.org>;

<allcladdiscount.org>;

<allcladpan.com>;

<allcladpots.org>;

<discountallclad.org>;

<emerilallclad.com>;

be transferred to the Complainant.


Anne-Virginie La Spada-Gaide
Sole Panelist

Dated: September 5, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0837.html

 

Добавить эту страницу в закладки:

 


 

Произвольная ссылка:

Разработка сайта
ArtStyle Group

Уважаемый посетитель!

Вы, кажется, используете блокировщик рекламы.

Пожалуйста, отключите его для корректной работы сайта.