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and Mediation Center
IPC Media Limited v. Mikhail Nachalov
Case No. D2006-0862
1. The Parties
The Complainant is IPC Media Limited, London, United Kingdom of Great Britain and Northern Ireland, represented by fJ Cleveland, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Mikhail Nachalov, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <nmerussia.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 6, 2006. On July 10, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 10, 2006, eNom 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 12, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 1, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 2, 2006.
The Center appointed Gerd F. Kunze 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,
4. Factual Background
The Complainant has for many years issued a printed publication relating to music under the trademark NME. It has submitted an example of the publication. In 1996, it has also set up a corresponding website, located at “www.nme.com”. Examples of pages from the website, showing prominently the trademark NME in the same specific graphic representation as on the printed publication have also been submitted.
The Complainant is the proprietor of several registrations for the trademark NME, covering several classes of the Nice classification, including in particular entertainment services in class 41, such as:
- UK registration no 2136525, dated February 4, 1998;
- CTM registration no 2272904, dated July 25 2003;
- International registration no 766425, dated July 10, 2001, covering amongst others the Russian Federation.
The Respondent registered on August 30, 2004, the
domain name <nmerussia.com> and uses it as address for a website dedicated
to information relating to music. The Respondent shows on his website the capital
letters NME in a graphic presentation that is identical to the graphic representation
used by the Complainant for its trademark NME, followed by the term “russia.com”
in smaller script and underlined by a transliteration into Cyrillic script.
These facts are evidenced by the Complainant with copies of the respective web
5. Parties’ Contentions
The Complainant submits that the domain name <nmerussia.com> combines the element NME that is identical to its trademark with the geographically descriptive word “russia”. It therefore submits that (A) the domain name <nmerussia.com> is identical or at least confusingly similar to its trademark NME in which it has rights; (B) the Respondent has no rights or legitimate interests in respect of the domain name; and (C) the domain name was registered and is being used in bad faith.
The Respondent has failed to submit a Response. It
has therefore not contested the allegations of the Complaint and the Panel shall
decide on the basis of the Complainant’s submissions, and all inferences
that can reasonably be drawn there from (Rules, paragraph 14(b)).
6. Discussion and Findings
A. Identical or Confusingly Similar
The contested domain name consists of the Complainant’s trademark NME, followed by the geographically descriptive term “russia”. This term cannot exclude confusing similarity, since the trademark NME is the distinctive element of the domain name and Internet visitors are likely to understand the domain name as a name that leads to a website of the Complainant dealing with music information relating to Russia or addressed to the Russian market. The gtld “.com” cannot be taken into consideration when judging confusing similarity. The domain name <nmerussia.com> is therefore confusingly similar to the trademark NME, in which the Complainant has rights.
B. Rights or Legitimate Interests
NME is not a descriptive term, in which the Respondent might have a legitimate user-interest. It is known as the name of a publication of the Complainant. The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent’s use of the domain name.
Furthermore, none of the circumstances listed under paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are evident from the materials before the Panel. The Respondent indeed uses the domain name on a commercial website with information relating to music; however this use cannot in the circumstances be considered to be bona fide. Both the domain name and the website linked to it use prominently the trademark NME of the Complainant without having acquired any rights of its own in that mark. At least the Respondent has failed to submit any statements or evidence for such rights. Consequently the Panelist is satisfied with the statement of the Complainant that it has been unable to locate any trademark registration for NME or NME RUSSIA standing in the name of the Respondent. Failing any submission of the Respondent, the Panel also agrees with the assumption of the Complainant that the Respondent has not been commonly known under the domain name. Considering the contents of the website, the Panel is also satisfied that the use made by the Respondent is not a non-commercial or fair use without intent for commercial gain. On the contrary, taking into account the Respondent’s prominent use on its website of the Complainant’s trademark NME in the same graphic presentation as the Complainant uses its trademark for its printed publication and for its website “www.nme.com”, the Panel considers this use to be for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Failing any submission of the Respondent the Panel is therefore satisfied that the Respondent has no right or legitimate interest in the domain name <nmerussia.com>.
C. Registered and Used in Bad Faith
Even if the Respondent has not responded to the Complaint, the Complainant has to prove under the Policy that the Respondent has registered and is using the domain names in bad faith.
Paragraph 4(b)(iv) of the Policy lists as one of the typical situations of evidence of registration and use in bad faith that, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website.
The Complainant has submitted facts and evidence that the Respondent has fulfilled the conditions set out in paragraph 4(b)(iv). Taking into account the fact that the Respondent’s domain name consists of a combination of the Complainant’s trademark NME with the geographical indication “russia”, and the fact that the Respondent uses on its website the same graphic representation of the Complainant’s trademark as the Complainant, there can be no doubt that the Respondent knew the Complainant’s trademark NME, when it registered the domain name. For the same reasons the Panel is satisfied that by his use of the domain name the Respondent attempts to attract Internet users to this website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website. Indeed, Internet users, when typing the domain name, will expect, to arrive at a website of the Complainant or at least a website somehow related to the Complainant, such as a website of the Complainant, addressed to the Russian Market. This expectation will at first glance be confirmed by the impression given at the Respondent’s website, where the visitor will as usual find the Complainant’s trademark on the top of the website left hand in the usual graphic presentation. That the presentation of the trademark is followed by the term “russia.com” (in smaller letters and both in Latin and in Cyrillic script) and that the content of the website is mainly written in Cyrillic script is likely to be understood as hint to the targetting of this website to the Russian clients of the Complainant.
The Respondent’s website provides numerous links to music titles and also for the possibility to download such titles. Failing any submission of the Respondent the Panel is convinced that these links are in all probability provided for commercial gain, the more as arrangements to provided links in order to collect a fee are common. It is indeed most unlikely that, if the use made on the Respondent’s website were a non-commercial or a fair use, he would not have submitted reasonable arguments to show that his use is not commercial.
Even where Internet users, when they view the Respondent’s web page in more detail, realize that it is not connected with the Complainant, the Respondent may still profit from their initial confusion, since they may be tempted to click on the links which are at least to some extent likely to be sponsored.
In conclusion the Respondent is pursuing an activity, which must be considered
to be registration and use in bad faith under the Policy.
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 <nmerussia.com> be transferred to the Complainant.
Gerd F. Kunze
Dated: August 23, 2006