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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Danfoss A/S v. Belize Domain WHOIS Service Lt.

Case No. D2008-1274

 

1. The Parties

The Complainant is Danfoss A/S, Nordborg, of Denmark, represented internally.

The Respondent is Belize Domain WHOIS Service Lt., Belize.

 

2. The Domain Name and Registrar

The disputed domain name <wwwdanfoss.com> is 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 вАЬCenterвАЭ) on August 20, 2008. On August 21, 2008, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On August 21, 2008, 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. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the вАЬPolicyвАЭ), the Rules for Uniform Domain Name Dispute Resolution Policy (the вАЬRulesвАЭ), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the вАЬSupplemental RulesвАЭ).

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 August 26, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 15, 2008. The Respondent did not submit any response. Accordingly, the Center notified the RespondentвАЩs default on September 19, 2008.

The Center appointed Ian Blackshaw as the sole panelist in this matter on September 26, 2008. 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 multinational company and a leader in research, development and production of mechanical and electronic components and solutions and was founded in Denmark in 1933.

The Complainant manufactures and sells refrigeration and air-conditioning products, heating products, water control products, motion control and other products. These products are sold and serviced worldwide by an international network of sales companies and distributors in more than 100 countries and regions.

The net sales of the Complainant in 2007 worldwide were 2,979 billion Euros and are estimated to reach between 3.160-3.294 billion Euros in 2008, which equals a growth rate of between 6%-10% compared with 2007.

The Complainant has registered the trademarks DANFOSS word and DANFOSS logo in around 100 countries worldwide and the very first registration was obtained in Denmark on September 14, 1940 under reg. no. VR 1940 00520.

Details of a selection of the ComplainantвАЩs trademark registrations in some of the countries around the world have been provided to the Panel. The value of the DANFOSS marks is estimated at just short of 1 billion Euros.

The Complainant uses the trademark DANFOSS as the domain name for its website at вАЬwww.danfoss.comвАЭ which was registered on November 14, 1995. The website contains information about the ComplainantвАЩs products and business areas and attracts approximately 105,000 visitors per month. The Complainant has invested much on the electronic and online medium, such as the Internet, in order to protect the trademark and currently has 250 registered gTLDs and ccTLDs containing the DANFOSS mark in total.

The disputed Domain Name, which has been registered by the Respondent, is currently active and displays various links. Evidence of this has been provided to the Panel.

When these links are activated the user is presented with sponsored links to pages of third parties which are not affiliated to the Complainant. The links to these third parties range from travel agencies, dating sites, shopping sites, travel sites, websites selling Viagra, erotic websites and so on. Some examples of the sponsored links which are contained on the RespondentвАЩs website have been provided to the Panel.

 

5. PartiesвАЩ Contentions

A. Complainant

The Complainant makes the following contentions:

A1. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(Policy, paragraph 4(a)(i), Rules, paragraphs 3(b)(viii), (b)(ix)(1))

The disputed Domain Name is identical or confusingly similar to the DANFOSS trademark. The fact that the Respondent has inserted the letters вАШwwwвАЩ in front of the DANFOSS mark is commonly known as вАШtypo squattingвАЩ. The purpose of вАШtypo squattingвАЩ is to exploit the userвАЩs typographical mistakes when seeking the ComplainantвАЩs website.

The addition of the generic acronym for the World Wide Web (www) to the DANFOSS mark does not remove any confusion in the mind of the average user.

Many prior WIPO UDRP panel decisions have deemed domain names that consist of the prefix вАЬwwwвАЭ affixed to a trademark to be вАШtypo squattingвАЩ cases and have concluded that such domain names are identical or confusingly similar to the relevant trademark. For example, see Pfizer, Inc. v. Seocho and Vladimir Snezko, WIPO Case No. D2001-1199 <wwwpfizer.com>; Trustmark National Bank v. Henry Tsung, WIPO Case No. D2004-0274 <wwwtrustbank.com>; Scania CV AB (Publ) v. Unaci, Inc. WIPO Case No. D2005-0585 <wwwscania.com>; Advance Magazine Publishers Inc. d/b/a Cond√© Nast Publications v. MSA, Inc. and Moniker Privacy Services, WIPO Case No. D2007-1743 <wwwwired.com>; Swarovski Aktiengesellschaft v. Comdot Internet Services Private Limited, WIPO Case No. D2007-1788 <wwwswarovksi.com>; and Mastercard International Incorporated v. DL Webb, WIPO Case No. D2008-0324 <wwwmastercard.com>.

A2. The Respondent has no rights or legitimate interests in respect of the domain name; (Policy, paragraph 4(a)(ii), Rules, paragraph 3(b)(ix)(2))

The Respondent has no rights or legitimate interest in the disputed Domain Name as stated above, the Complainant registered the domain name <www.danfoss.com> on November 14, 1995, while the Respondent registered the disputed Domain Name on January 11, 2006. The ComplainantвАЩs use of the registered trademark DANFOSS as a Domain Name precedes the RespondentвАЩs registration. It is, therefore, inconceivable that the Respondent did not have any knowledge of the ComplainantвАЩs trademark and domain name registration.

The Respondent does not represent the Complainant nor has the Respondent acquired any license to use the DANFOSS trademark.

The Respondent has deliberately registered the disputed Domain Name, based on a worldwide known brand, with the intention of diverting customers to its website, thus exploiting the usersвАЩ typographical errors made when seeking the website of the Complainant.

The Respondent is using the DANFOSS trademark to generate traffic to the sponsored links and through this procedure to generate income for the RespondentвАЩs own benefit, which cannot be considered a use in connection with a bona fide offering of goods and/or services.

A3. The domain name was registered and is being used in bad faith.

(Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraphs 3(b)(ix)(3))

The Respondent has deliberately registered the disputed Domain Name with a typographical error, also known as вАШtypo squattingвАЩ, with the clear intention of confusing consumers and potential customers of the Complainant.

The Respondent has clearly been aware of the ComplainantвАЩs pre-existing domain name <www.danfoss.com> when registering the disputed Domain Name. This type of domain registration only serves the purpose of exploiting the DANFOSS mark for profit, which can only be interpreted as bad faith.

Through the use and maintenance of the disputed Domain Name, the Respondent is capitalizing upon the ComplainantвАЩs trademark rights and is contributing to diminishing the value of the DANFOSS trademark.

The Respondent is exploiting the DANFOSS trademark for commercial gain in the form of вАШpay-per-clickвАЩ revenues from third partiesвАЩ advertising, which cannot be considered a bona fide offering of goods and/or services.

Furthermore, prior to the present Complaint, the Respondent has been involved in several other domain name dispute cases in which the Respondent has been ordered to transfer the domain name in question. For example, see Scandic Hotels AB v. Great Camanoe Investments Ltd / Belize Domain WHOIS Service Lt., WIPO Case No.. D2007-0813; Fredericia Furniture A/S v. Belize Domain Whois Service Lt, WIPO Case No. D2007-1515; and First Allied Securities, Inc. v. Belize Domain WHOIS Service Lt, WIPO Case No.. D2007-1780.

B. Respondent

The Respondent, having been duly notified of the Complaint and of these proceedings, did not reply to the ComplainantвАЩs contentions or take any part in them.

 

6. Discussion and Findings

To qualify for cancellation or transfer of the domain name at issue, the Complainant must prove each of the following elements of paragraph 4(a) of the Policy, namely:

(i) The disputed 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 disputed domain names has been registered and is being used in bad faith.

In accordance with paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.

In accordance with paragraph 14(a) of the Rules, in the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by the Rules or the Panel, the Panel shall proceed to a decision on the Complaint; and (b) if a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences as it considers appropriate.

In accordance with paragraph 10(d) of the Rules, the Panel shall determine the admissibility, relevance, materiality and weight of the evidence.

In previous WIPO UDRP cases in which the respondent failed to file a response, the panelвАЩs decisions were based upon the complainantвАЩs assertions and evidence, as well as inferences drawn from the respondentвАЩs failure to reply. See The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064; and also K√ґstritzer Schwarzbierbrauerei v. Macros-Telekom Corp., WIPO Case No. D2001-0936.

Nevertheless, the Panel must not decide in the ComplainantвАЩs favor solely based on the RespondentвАЩs default. See Cortefiel S.A. v. Miguel Garc√≠a Quintas, WIPO Case No. D2000-0140. The Panel must decide whether the Complainant has introduced elements of proof, which allow the Panel to conclude that its allegations are true.

A. Identical or Confusingly Similar

It is well established in previous WIPO UDRP cases that, where a domain name incorporates a complainantвАЩs registered mark, this may be sufficient to establish that the domain name is identical or confusingly similar for the purposes of the Policy. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.

In the present case, the disputed Domain Name incorporates the ComplainantвАЩs widely-known trademark DANFOSS, and is identical to the ComplainantвАЩs pre-existing registered Domain Name, namely, <danfoss.com>, with the addition only of the letters вАШwwwвАЩ preceding the ComplainantвАЩs trademark DANFOSS. The panel agrees with the ComplainantвАЩs contention that such addition constitutes so-called вАШtypo squattingвАЩ which is designed to cause confusion on the part of Internet users seeking the ComplainantвАЩs website. See Mastercard International Incorporated v. DL Webb, WIPO Case No. D2008-0324 <wwwmastercard.com>. In that case, the Panel held that вАЬthe addition of a prefix is insufficient to differentiate the ComplainantвАЩs mark from the domain name and does not prevent confusion. The addition of the вАЬwwwвАЭ prefix has been cited as a common practice of вАЬtypo-squattersвАЭ who try to take advantage of the fact that Internet users may fail to insert a period between the World Wide Web prefix and the remainder of the domain name.вАЭ See also Inter alia Rentals Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441.

Apart from вАЬtypo squattingвАЭ cases, the addition of the descriptive letters such as вАШwwwвАЩ (shorthand for the World Wide Web) as part of the disputed Domain Name is not sufficient, to distinguish the Domain Name from the ComplainantвАЩs widely-known trademark DANFOSS. See Banco Bilbao Vizcaya Argentaria, S.A. v. femi abodunrin, WIPO Case No. D2004-0404, in which it was held that the disputed domain name in that case <bbvas.com> was confusingly similar to the complainantвАЩs вАЬbbvaвАЭ mark and that the mere addition of the letter вАЬsвАЭ did not eliminate confusion. See also ACCOR v. Eduardo Marchiori Leite, WIPO Case No. D2004-0680, in which it was held that the <thalassar.com> domain name was confusingly similar to the THALASSA mark.

In view of all this, the Panel finds that the disputed Domain Name registered by the Respondent is identical or confusingly similar to the ComplainantвАЩs widely-known trademark DANFOSS, in which the Complainant has demonstrated, to the satisfaction of the Panel, that it has well-established rights and substantial goodwill through wide-spread promotion and commercial use of the same around the world prior to the registration of the disputed Domain Name by the Respondent.

B. Rights or Legitimate Interests

In order to determine whether the Respondent has any rights or legitimate interests in respect of the disputed Domain Name (paragraphs 3(b)(ix)(2) of the Rules and 4(c) of the Policy), attention must be paid to any of the following circumstances in particular but without limitation:

(i) whether before any notice to the Respondent of the dispute, there is any evidence of the RespondentвАЩs use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;

(ii) whether the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights;

(iii) whether the Respondent is making a legitimate non commercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue.

There is no evidence before the Panel to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the disputed Domain Name. Indeed, in view of the ComplainantвАЩs wide-known trademark DANFOSS and its extensive commercial promotion and use around the world and the considerable goodwill that it enjoys, the Respondent must in all likelihood have known that, when registering the disputed Domain Name, the Respondent could not have вАУ or, indeed, claimed вАУ any such rights or interests. Indeed, in these circumstances, as stated in Singapore Airlines Limited v. Robert Nielson (trading as Pacific International Distributors), WIPO Case No. D2000-0644, вАЬit strains credibilityвАЭ that the Respondent was oblivious of the existence of the ComplainantвАЩs widely-known trademark DANFOSS when registering the disputed Domain Name. Apart from that, if the Respondent had any such rights and interests, the Respondent would have reasonably been expected to assert them, which the Respondent clearly has not done, by not replying to this Complaint. See 1-800-Flowers.com, Inc, Fresh Intellectual Properties, Inc., Fannie May Confections, Inc. v. G Design, WIPO Case No. D2006-0977.

Nor has the Respondent been authorized or licensed by the Complainant to use the ComplainantвАЩs trademark DANFOSS in the disputed Domain Name. Indeed, the adoption by the Respondent of a domain name confusingly similar to the ComplainantвАЩs widely-known trademark DANFOSS inevitably leads to confusion on the part of Internet users and consumers seeking information about the Complainant and its products and services (see further on this point below) and the consequential tarnishing of the ComplainantвАЩs widely-known trademark DANFOSS and also the valuable goodwill that the Complainant has established in this trademark through wide-spread commercial use over many years, sufficient evidence of which has been provided to the Panel, without any right or legal justification for doing so.

Also, the Panel finds 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. Likewise, no evidence has been adduced that the Respondent has commonly been known by the disputed Domain Name; nor, for the reasons mentioned above, is the Respondent making a legitimate non-commercial or fair use of the disputed Domain Name.

Therefore, for all the above reasons, the Panel concludes that the Respondent has neither rights nor legitimate interests in the disputed Domain Name.

C. Registered and Used in Bad Faith

Regarding the bad faith requirement, paragraph 4(b) of the Policy lists four examples of acts, which if established constitute evidence of bad faith. However, this list is not exhaustive, but merely illustrative. See Nova Banka v. Iris, WIPO Case No. D2003-0366.

Paragraph 4(b)(iv) of the Policy is particularly relevant to the present case and provides that there is evidence of registration and use in bad faith in the following circumstances:

вАЬ(iv) by using the domain name, [the respondent] has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainantвАЩs mark as to the source, sponsorship, affiliation, or endorsement of [the respondentвАЩs] website or location or of a product or service on its website or location.вАЭ

Based on the record in the case file, the Panel agrees with the ComplainantвАЩs contention that the Respondent, by registering the disputed Domain Name, is trading on the ComplainantвАЩs valuable goodwill established in its widely-known trademark DANFOSS. In the particular circumstances of the present case, the Panel takes the view that it was unlikely that the registration of the disputed Domain Name by the Respondent was coincidental, but rather more likely to have been intentionally made with the ComplainantвАЩs widely-known trademark and the valuable goodwill it represents in the market place specifically in mind.

Again, by registering and using the disputed Domain Name incorporating the ComplainantвАЩs widely-known trademark DANFOSS, the effect is to mislead Internet users and consumers into thinking that the Respondent is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the RespondentвАЩs activities are approved or endorsed by the Complainant. None of which, on the basis of the record in the case file is, in fact, the situation. Such misleading consequences, in the view of the Panel, constitute bad faith on the part of the Respondent. See Columbia Insurance Company v. Pampered Gourmet, WIPO Case No. D2004-0649. Again, the inclusion of references to products on the RespondentвАЩs website comprising the disputed Domain Name that compete or have nothing at all to do with those of the Complainant and, in the case of erotic products and Viagra, may detract from and tarnish the ComplainantвАЩs goodwill and reputation constitutes bad faith.

Furthermore, the fact that the disputed Domain Name includes the widely-known trademark DANFOSS of the Complainant, registered by the Complainant several years before the Respondent registered the disputed Domain Name, is a further factor supporting a conclusion of bad faith. See Segway LLC v. Chris Hoffman, WIPO Case No. D2005-0023; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028. For a domain name can only be used in good faith by the owner of the respective right or by a licensee, neither of which is the situation in the present case.

Again, the so-called вАЬclick-throughвАЭ income that the Respondent is gaining on the back of the ComplainantвАЩs widely-known trademark DANFOSS from visitors to its website incorporating the disputed Domain Name also, in the view of the Panel, constitutes bad faith. See Mc DonaldвАЩs Corporation v ZusCom, WIPO Case No. D2007-1353, in which the panel in that case stated: вАЬPanels have held that the use of anotherвАЩs trademark to generate revenue from Internet advertising can constitute registration and use in bad faith as a classic illustration of the conduct condemned by paragraph 4(b)(iv) of the PolicyвА¶вАЭ

Also, it would appear that the Respondent has something of a history of registering and using domain names unfairly as noted and cited above by the Complainant and this is also indicative of bad faith on the part of the Respondent. See Volvo Trademark Holding AB v Unasi, Inc., WIPO Case No. D2005-0556, and also the WIPO UDRP cases cited therein.

Finally, the failure of the Respondent to answer the ComplainantвАЩs complaint or take any part in the present proceedings is, again in the view of the Panel, a further indication of bad faith on the part of the Respondent. See Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787.

Therefore, taking all these particular circumstances into account and for all the above reasons, the Panel concludes that the Respondent has registered and is using the disputed Domain Name 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 <wwwdanfoss.com> be transferred to the Complainant.


Ian Blackshaw
Sole Panelist

Dated: October 8, 2008

 

»сточник информации: https://www.internet-law.ru/intlaw/udrp/2008/d2008-1274.html

 

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