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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Western Union Holdings, Inc. v. Anna Valdieri

Case No. D2006-0884

 

1. The Parties

The Complainant is Western Union Holdings, Inc., United States of America, represented by Sutherland Asbill & Brennan, LLP, United States of America.

The Respondent is Anna Valdieri, Vienna, Austria.

 

2. The Domain Name and Registrar

The disputed domain name <western-union.com> is registered with Bizcn.com Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 12, 2006. On July 12, 2006, the Center transmitted by email to Bizcn.com Inc. a request for registrar verification in connection with the domain name at issue. On July 18, 2006, Bizcn.com Inc 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 relating to these proceedings on July 20, 2006. The Center verified that the Complaint together with the amendment to the Complaint (collectively, “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 21, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 14, 2006.

The Center appointed James A. Barker as the sole panelist in this matter on August 28, 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 a large number of trademarks and service marks including the words WESTERN UNION. The Complainant uses the marks in connection with communication and financial services throughout the world.

The Complainant actively promotes its marks and, through its parent company, holds many domain names that incorporate the words WESTERN UNION, including <westernunion.com>.

 

5. Parties’ Contentions

A. Complainant

The following contentions are summarised from the Complaint.

Identical or confusingly similar

The disputed domain name is identical or, at least, confusingly similar to the Complainant’s mark WESTERN UNION. Only the insertion of a hyphen distinguishes the disputed domain name from the Complainant’s mark. The visual and aural similarities between the disputed domain name and the Complainant’s mark are overwhelmingly obvious. As stated by previous panels, the insertion of a hyphen does not diminish confusing similarity. (See Columbia Sportswear Company v. Mahlon Keeler, WIPO Case No. D2000-0206.) Moreover, as previous WIPO UDRP panels have repeatedly stated, the addition of the “.com” extension does not diminish confusing similarity.

Rights or legitimate interests

There is no evidence that the Respondent has rights in the disputed domain name, within the meaning of paragraph 4(c) of the Policy.

There is no evidence that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. To the contrary, the Respondent has used the disputed domain name to divert Internet users to a website which appears to be a “directory site” with links to the sites of third parties. The Complainant believes that the Respondent financially benefits from these activities on a “per click” basis. The only conceivable purpose of the Respondent’s use of the disputed domain name is to trade upon the goodwill associated with the Complainant’s mark.

Further, the Respondent is not commonly known by the disputed domain name, nor is the Respondent making a non-commercial fair use, within the meaning of the Policy, paragraph 4(c)(ii) or (iii).

Bad faith

The Respondent has registered and used the disputed domain name in bad faith, within the meaning of paragraph 4(b)(iv) of the Policy. Here, the Respondent seeks to take advantage of the Complainant’s mark, to direct Internet traffic to its directory site, through which the Respondent appears to be gaining revenue for all “clicks” from Internet visitors. The Respondent would not have registered the disputed domain name unless it intended to trade on the valuable goodwill and the rights of the Complainant. All the evidence suggests that the Respondent’s registration of the disputed domain name was calculated rather than accidental.

Because of the distinctive nature of the Complainant’s mark, the Respondent would not have registered the disputed domain name unless it intended to trade on the valuable and prior and exclusive rights held by the Complainant in the WESTERN UNION mark.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that, for the Complainant to succeed and have the disputed domain name transferred to it, the Complainant must prove that:

i. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

ii. the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

iii. the disputed domain name has been registered and is being used in bad faith.

The Complainant must prove all of these elements. These elements are discussed in turn as follows.

A. Identical or Confusingly Similar

There is no dispute that the Complainant has rights in the WESTERN UNION mark. The Complainant’s mark is well-known. Substantial evidence of the Complainant’s rights in its mark were attached to the Complaint.

The disputed domain name is virtually identical to the Complainant’s mark. It is well-established that the insertion of a hyphen and the addition of the <.com> extension, are not relevantly distinguishing features.

For these reasons, the Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, because there is no evidence that would satisfy the factors set out in paragraph 4(c) of the Policy. Paragraph 4(c) of the Policy provides that a Respondent may demonstrate rights or legitimate interests if the Respondent (i) has used or undertaken demonstrable preparations to use, a domain name in connection with a bona fide offering of goods or services, or (ii) is commonly known by the domain name, or (iii) is making a legitimate noncommercial or fair use of the domain name.

The Respondent, by its default, has not demonstrated any of these rights or legitimate interests.

The Complainant contends that the only conceivable purpose of the Respondent’s use of the disputed domain name is to misleadingly divert Internet users to the Respondent’s directory site. The Panel agrees that this is a difficult conclusion to avoid.

The disputed domain name reverts to a rudimentary directory site, which is little more than a list of links. A respondent that has and is confident of its rights or legitimate interests in a website, might be expected to invest more in it than this Respondent. As such, the nature of the site itself is suggestive of a lack of rights or legitimate interests.

The Respondent’s failure to respond, or make any other communication in connection with this case, also suggests a lack of rights or legitimate interests in the disputed domain name. If the Respondent had those rights, it would be natural for it to have tried to defend them. The Complainant was properly notified to the Respondent. There is no evidence that the Respondent was not aware of these proceedings.

In addition, the Complainant has clearly established a prima facie case against the Respondent. Having established that case, the burden then shifts to the Respondent to demonstrate its rights or legitimate interests. The Respondent’s default means that it has not met this burden.

For these reasons, the Panel finds that this second element of the Policy is proved.

C. Registered and Used in Bad Faith

The Complainant argues that that the Respondent has registered and used the disputed domain name in bad faith under paragraph 4(b) of the Policy. Paragraph 4(b) of the Policy provides that there is evidence of registration and use in bad faith in circumstances where a respondent has, by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website by creating confusion as to the source, sponsorship, affiliation or endorsement of the respondent’s website.

The Panel finds that the circumstances in paragraph 4(b) of the Policy are present in this case. As noted above, the disputed domain name is identical to the Complainant’s mark. Being identical, the likelihood of confusion is obvious.

It is likely that the Respondent knew of the Complainant’s mark, and has sought to obtain a commercial benefit by attracting Internet users based on that confusion. The Complainant’s mark is well-known and distinctive, and incorporated entirely in the disputed domain name. There is no evidence offered by the Respondent, or evident from the Respondent’s website, that suggests that the Respondent has any separately existing rights or interests in relation to the WESTERN UNION mark. In these circumstances, it is clear that Internet users would be confused as the affiliation of the Respondent’s website with the Complainant and its mark.

 

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 <western-union.com> be transferred to the Complainant.


James A. Barker
Sole Panelist

Dated: September 11, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0884.html

 

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