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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Niit Limited v. Admin, Jucco Holdings

Case No. D2007-0037

 

1. The Parties

The Complainant is Niit Limited, of New Delhi, India.

The Respondent is Admin, Jucco Holdings, of Los Angeles, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <niitnigeria.com> is registered with NameKing.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 11, 2007. On January 11, 2007, the Center transmitted by email to NameKing.com a request for registrar verification in connection with the domain name at issue. On January 12, 2007, NameKing.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 22, 2007. 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 January 31, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 20, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2007.

The Center appointed Ross Wilson as the sole panelist in this matter on February 26, 2007. 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.

On March 12, 2007, the Complainant requested the Panel to suspend the proceeding because the Respondent showed willingness to transfer to the Complainant the disputed domain name. On March 15, 2007 the Panel accepted the Complainant’s petition granting in Panel Order No. 1 a suspension of the proceeding until March 30, 2007. On March 30, 2007, the Complainant sent a communication to the Center stating that the parties were “in the final stages of settling the above-mentioned matter” and, therefore, the Complainant asked the Panel to suspend the proceeding “till further notice.” The Panel decided not to grant this second suspension considering that: (a) no justification for a new extension was given; (b) the extension request was open-ended as no time period was specified; (c) the 14-day suspension granted in Panel Order No. 1 provided sufficient time to arrange the domain name transfer if there was sufficient goodwill on the part of the Respondent; and (d) at the time of this decision more than seven weeks have elapsed since the Respondent apparently indicated to the Complainant a willingness to transfer the disputed domain name (initially on February 17, 2007 and again on March 2, 2007).

 

4. Factual Background

The Complainant is a public company established in India in 1981 to provide information technology education, training and information technology solutions. The name NIIT is derived from the Complainant’s trading style: National Institute of Information Technology. NIIT has trained one out of every three software professionals in India and is widely regarded as the pioneer in creating the informal information technology education movement in India.

The Complainant is Asia’s largest information technology trainer and South Asia’s largest provider of computer education and training services. In addition, the Complainant has set up software development and R&D Centres in India. In 1987, the Complainant offered a “licensing system” to third parties for various territories enabling them to set up and conduct NIIT Education Centres. As a result, the Complainant now has over 6,200 Centres across 32 countries.

The Complainant operations include training networks in Mexico, Peru, United States of America, Kazakhstan, Bangladesh, Cambodia, China, India, Indonesia, Malaysia, Nepal, Philippines, Sri Lanka, Turkey, Vietnam, Bahrain, Iran, Oman, Qatar, Yemen, Botswana, Ghana, Mauritius, Nigeria, South Africa, Sudan, and Zimbabwe. Currently, the Complainant has over 96 Franchise Centres outside India. The Complainant is the registered proprietor of the trademark NIIT in India since 1989. The Complainant also has its trademark NIIT registered in forty-nine countries including the United States of America, United Kingdom, China, Hong Kong SAR of China, Indonesia, Korea, Mauritius, South Africa, Taiwan, New Zealand, and Peru. The Complainant has also applied for registrations in several other countries such as Australia, Pakistan, Kuwait, and Saudi Arabia.

In 2006, based on an annual industry survey, the Complainant won the ‘No. 1 IT Training Company Award’ awarded by India’s leading information technology publication group Cybermedia, the publisher of Dataquest. The results of the survey indicated that NIIT had revenues over 1.5 times higher than the combined revenues of the next four players.

The Complainant has an extensive Internet presence and numerous websites that provide information on its business activities, products and services, and is accessed by shareholders, customers and other Internet users. Its websites include “www.niit.com”, “www.niit.net” and “www.niit.in”.

The disputed domain name was registered on October 27, 2004.

 

5. Parties’ Contentions

A. Complainant

According to the Complainant:

- the disputed domain name includes the word NIIT, which is identical in part and confusingly similar as a whole to the Plaintiff’s well-known and registered mark NIIT.

- all the Complainant’s centres as well as its franchisee’s centres use the name “NIIT Centre” with the word “Centre” preceded by the geographical or location noun. The addition of “Nigeria” to the Complainant’s well-known and famous trademark NIIT makes the domain name confusingly similar to the mark NIIT in which the Complainant has statutory and common law rights.

- since the disputed domain name comprises the well-known trademark NIIT, it is evident that the Respondent can not have any right or legitimate interest in the domain name. Further, it is apparent that the sole purpose of registering the domain name <niitnigeria.com> is to misappropriate the reputation associated with the Complainants well-known trademark NIIT.

- the Respondent is not commonly known by the domain name nor has it made any demonstrable preparation to use the disputed domain name <niitnigeria.com> in connection with a bona fide offering of goods or services.

- the disputed domain name appears to be parked and accessing the webpage to which it resolves there are a variety of links to the Complainant’s website as well as those of its competitors.

- the Respondent is not a licensee of the Complainant and the Complainant has not granted any permission or consent to the Respondent to use the trademark NIIT in any manner or to incorporate it into a domain name.

- the Respondent has not shown any demonstrable preparation to use the domain name in connection with a bona fide offering of goods and services. Instead, the Respondent has parked the domain name and is deriving a commercial benefit from misdirecting consumers by putting sponsored links containing the Complainant’s trademarks.

- the disputed domain name <niitnnigeria.com> does not resolve to an active website. Rather, it has sponsored links on the web page which include links incorporating the Complainant’s trademark NIIT. Hence, it is evident that the Respondent is deriving commercial benefit from misrepresenting itself as the Complainant and inducing users to believe that it has some kind of affiliation with the Complainant. This conduct of the Respondent is evidence of registration and use of the domain name in bad faith.

- the Respondent is a seasoned cyber squatter who has had a previous history of Complaints under the UDRP filed against it.

- it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation or an infringement of the Complainant’s rights under trademark law. Hence, the passive holding is indicative of bad faith registration and use of the domain name.

- Finally, the Complainant relies on Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 because there has been no active use of the disputed domain name <niitinigeria.com> for a considerable period of time after registration, the widely known status of the Complainant’s trademark NIIT and the redirection of the disputed domain name to a parked web page.

B. Respondent

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

 

6. Discussion and Findings

The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy, as follows:

(i) the domain name 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 has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant claims rights from its Indian trademark NIIT registered on November 2, 1989 and other trademarks registered in numerous countries.

The disputed domain name <niitnigeria.com> is made up of the simple combination of the Complainant’s trademark and the geographical location of Nigeria.

Since the commencement of the UDRP many panels have considered the effect of linking a trademark with a country name as either a prefix or suffix to create a domain name. The common conclusion is that the addition of a country name does not distinguish the domain name from the trademark. As expressed in Koninklijke Philips Electronics NV v. Gopan P.K., WIPO Case No. D2001-0171, a country name “adds nothing other than to signify a geographical location or limitation and would be regarded by virtually every person who saw the disputed domain name as an indication that it was the domain name of [the Complainant] as utilized in [that country]”.

Consistent with previous decisions the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out how a Respondent can demonstrate rights to and legitimate interests in the disputed domain name. In this case, the Respondent has chosen not to file any submission or evidence to demonstrate its rights or legitimate interests in the name NIIT. In these circumstances the Panel under paragraph 14(b) of the Rules is entitled, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.

The evidence provided by the Complainant is that the Respondent has parked the domain name and is deriving a commercial benefit from misdirecting consumers by incorporating sponsored links containing the Complainant’s trademarks. The Complainant makes it clear that the Respondent is not a licensee of the Complainant and that the Complainant has not granted permission to the Respondent to use the trademark NIIT in any manner or to incorporate the trademark in a domain name.

Based on evidence provided by the Complainant, the Respondent’s website at “www.niitnigeria.com” features links to the Complainant’s website and other websites, many of which appear to sell products that compete with those of the Complainant. There is no indication on the website that the Respondent has made a bona fide use of the domain name or the word “niit”. Similarly there is no evidence that the Respondent is commonly known by the domain name.

Overall no evidence before the Panel that the Respondent has any rights or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii) of the Policy under the above criteria or otherwise.

The Panel therefore finds that Respondent has no rights or legitimate interests in the Domain Name.

C. Registered and Used in Bad Faith

For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of a domain name in bad faith is evidenced.

The Complainant asserts that the bad faith domain name registration and use is evidenced by incorporating the Complainant’s well-known trademark in the disputed domain name.

The evidence that the domain name has been registered and used in bad faith is apparent in the fact that there is no reason for the Respondent to use the Complainant’s widely known trademark other than to disrupt the Complainant’s business and attract a financial benefit. Also, the sponsored links in the Respondent’s website include, inter alia, the Complainant’s trademark incorporated in the disputed domain name, which has no other common usage or meaning. This suggests that the Respondent was aware of the Complainant’s trademark at the time of registering the disputed domain name.

In the decision in Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163, the panel found that bad faith exists where a domain name “is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith.”

During 2006 the Respondent engaged in similar activities all of which were found to be bad faith use and registration (see Pancil, LLC v. Jucco Holdings, WIPO Case No. D2006-0676, Arla Foods amba v. Jucco Holdings, WIPO Case No. D2006-0409 and Biomedica Pharma-Produkte GmbH v. Jucco Holdings, WIPO Case No. D2006-0526). In the first case, the panel concluded “the only explanation of what has happened is that the Respondent’s motive in registering and using the sites seems to be, as the Complainant says, simply to disrupt the Complainant’s relationship with its customers or potential customers or attempt to intentionally attract Internet users for commercial gain. These both constitute evidence of registration and use in bad faith: paragraph 4(b)(iii) & (iv) of the Policy. This conclusion is supported by the view expressed in Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568”.

On the basis of the evidence put forward by the Complainant, the Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the domain name was registered and used in bad faith.

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


Ross Wilson
Sole Panelist

Dated: April 3, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0037.html

 

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