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and Mediation Center
ADMINISTRATIVE PANEL DECISION
ABB Asea Brown Boveri Ltd. v. SWX Teleinformatics Services
Case No. D2007-0082
1. The Parties
The Complainant is ABB Asea Brown Boveri Ltd., of Zurich, Switzerland, represented by Kikinis Rohner Schwenninger Weinmann, Switzerland.
The Respondent is SWX Teleinformatics Services, of Zurich, Switzerland.
2. The Domain Name and Registrar
The disputed domain name <abbfund.com> (the “Domain Name”)
is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 22, 2007 by email and on January 24, 2007 in hardcopy. On January 25, 2007, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On January 25, 2007, Tucows 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 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 February 2, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 26, 2007.
The Center appointed Tobias Zuberbьhler as the sole
panelist in this matter on March 19, 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.
4. Factual Background
The Complainant is a Swiss private limited company with its domicile in Zurich. It produces and distributes power and automation technology worldwide. The term ABB is incorporated in many domain names held by the Complainant under various ccTLDs and gTLDs. The Complainant proved ownership over numerous trademarks including or solely consisting of the term ABB as wordmark or as logo. Some of these marks are inter alia registered for financial affairs, specifically for fund investments.
The Respondent registered the Domain Name on November 27, 2006.
5. Parties’ Contentions
The Complainant objects to the use of the Domain Name by the Respondent and bases its Complaint on the following grounds:
1. The Domain Name is confusingly similar to the Complainant’s trademark.
2. The Respondent has no rights or legitimate interests in respect of the Domain Name as there is no relationship between the Respondent and the Complainant. Therefore, the Respondent has neither permission nor license to use the Complainant’s trademark. The Respondent makes no legitimate non-commercial or fair use of the Domain Name. The Respondent is not commonly known by the Domain Name.
3. The Respondent must have been aware of the Complainant’s name and trademarks. Moreover, Respondent’s alleged domicile is in Switzerland where the Complainant’s name and trademarks are very well known. Thus, the only conceivable intention for registering the Domain Name was to pretend a non-existing relationship between the Respondent and the Complainant with the goal to attract consumers and make (illegal) commercial gain. Therefore, the Domain Name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g. paragraph 2(a) of the Rules). In this case, the Panel finds that the Center complied with all formalities and that the Complaint was properly notified to the Respondent.
Paragraph 4(a) of the Policy sets forth three elements that must be established by the Complainant to merit a finding that the Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) the Respondent’s 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 Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name incorporates Complainant’s trademark in its entirety.
It also contains the word “fund”. Such a common word has limited
ability to distinguish the Domain Name from Complainant’s trademark. It
is the consensus view of the WIPO UDRP panelists that such a combination of
a trademark and a generic word cannot sufficiently avoid the likelihood of confusion
between the trademark and the Domain Name regarding the test of confusing similarity
(inter alia Pfizer Inc. vs. Jeff Ferris, WIPO
Case No. D2006-1242.
Thus, the Complainant meets the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent is no affiliate of the Complainant nor was it given any right to use the Complainant’s trademark. Nonetheless, Respondent created a domain name confusingly similar to Complainant’s trademark. By using this Domain Name, potential customers of the trademark owner could be diverted to Respondent’s website for commercial gain. Moreover, Complainant’s trademark could be tarnished by such conduct as the investments offered on the corresponding website might range from illegal to not serious and Complainant understandably wishes not to be brought into connection with such services. Furthermore, the Respondent has not been commonly known by the Domain Name as it was created in November 2006. Under these circumstances any bona fide offering does not appear to be plausible.
The Panel finds that the Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests and by defaulting the Respondent failed to demonstrate any right or legitimate interest in the Domain Name. Therefore, the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Respondent appears to aim at diverting Internet users and potential customers of the Complainant to a website under the Domain Name. Moreover, the Respondent has pretended to be affiliated with the Complainant by incorporating Complainant’s trademark in the Domain Name and by copying Complainant’s corporate web design at the website with the disputes Domain Name. At the same time, the Respondent seeks to conceal its own contact information by providing invalid or incorrect addresses and numbers. Additionally, the Respondent has intentionally exploited the image and goodwill connected with the Complainant’s trademark. This conduct of attracting Internet users to a website under a domain name confusingly similar to a widely known trademark for commercial gain indicates bad faith.
The Panel notes that some time after these proceedings commenced the Respondent has taken the website down and the Domain Name no longer resolves to an active website. The Panel finds that this conduct further indicates bad faith.
Therefore, the Complainant has fulfilled the requirements of paragraph 4(c)(iv)
of the Policy.
For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel orders that the domain name <abbfund.com> be transferred to the Complainant.
Dated: April 2, 2007