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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Costco Wholesale Corporation, Costco Wholesale Membership, Inc. v. Cindy Chau

Case No. D2008-1283

 

1. The Parties

The Complainant is Costco Wholesale Corporation and Costco Wholesale Membership, Inc., of the United States of America, represented by the Law Office of Mark J. Nielsen, of the United States of America.

The Respondent is Cindy Chau, of the United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <costcogift.com> is registered with Melbourne IT Ltd.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2008. On August 22, 2008, the Center transmitted by email to Melbourne IT Ltd. a request for registrar verification in connection with the domain name at issue. On August 25, 2008, Melbourne IT Ltd. 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 “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 August 29, 2008. In accordance with the Rules, paragraph 5(a), the due date for a Response was September 18, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 19, 2008.

The Center appointed Michael A. Albert as the sole panelist in this matter on September 30, 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

As Respondent failed to respond to Complainant’s contentions, the Panel finds that the assertions of fact in the Complaint are undisputed. Complainant is the owner of U.S. Trademark Registrations Nos. 1,976,242; 2,261,409; 2,440,636; and 2,481,924 for marks incorporating the word “Costco,” covering the sale of a wide variety of consumer goods. These marks include COSTCO and COSTCO.COM.

Respondent registered the disputed domain name <costcogift.com> on February 2, 2006. The domain names resolve to similar websites featuring links that direct to pages containing pay-per-click advertising links. A number of these advertising links resolve to the web pages of companies that are direct competitors of Complainant.

 

5. Parties’ Contentions

A Complainant

Complainant contends that the disputed domain name is identical or confusingly similar to its COSTCO mark. Specifically, Complainant asserts that the domain name incorporates its COSTCO mark in its entirety, along with a description of Complainant’s goods. Complainant contends that consumers may erroneously believe that the Complainant has granted the Respondent permission to use the mark when in fact it has not. Complainant notes that respondent registered the disputed domain name in February 2006, while its four relevant marks had been registered between 1996 and 2001.

Complainant contends that Respondent has no rights or legitimate interest in the domain names. Complainant asserts that it has never authorized Respondent to use the mark, or to register or use the disputed domain name. Complainant also asserts that it has no business relationship with the Respondent.

Complainant is not aware of any evidence that Respondent has ever been commonly known by the disputed domain name, nor of any evidence indicating that Respondent is making a legitimate non-commercial or fair use of the domain name.

Complainant contends that the disputed name was registered and is being used in bad faith. Complainant contends that by using the domain name, Respondent has intentionally attempted to attract Internet users for commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of its website, location, products or services offered on its websites. Complainant contends that Respondent registered the domain name primarily for the purpose of disrupting the business of Complainant by offering competing goods for sale. Complainant asserts that Respondent had constructive notice of Complainant’s mark, by virtue of Complainant’s U.S. Trademark registration, prior to registering the domain name.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

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

A. Identical or Confusingly Similar

The Panel concludes, first, that Complainant has sufficiently shown that it has rights in its COSTCO mark. Complainant owns United States federal registrations for this mark, which creates a presumption of ownership and validity.

Because the COSTCO mark covers the sale of many consumer products suitable for use as gifts, “gift” is a generic word relating to the nature of the business done in connection with that mark. Because the disputed domain name uses the mark in its entirety and merely adds the generic word “gift,” the domain name is confusingly similar to the Complainant’s mark. See, e.g., Chippendales USA, LLC v. Latins Finest, WIPO Case No. D2003-0980 (the addition of a generic term does not ordinarily serve to distinguish a domain name over registered marks).

B. Rights or Legitimate Interests

Respondent has no rights or legitimate interests in the domain name. Complainant asserts, unrebutted, that it has never authorized Respondent to use the mark, or to register or use the disputed domain name. Complainant also asserts, again unrebutted, that it has no business relationship with the Respondent.

It does not appear that Respondent has ever been commonly known by the disputed domain name, nor that Respondent is making a legitimate non-commercial or fair use of the domain name.

C. Registered and Used in Bad Faith

A comparison of Exhibits F and G, the front pages of <costco.com> and <costcogift.com>, demonstrates that Respondent’s website offers for sale a range of goods similar to the range sold by Complainant in conjunction with its registered marks. The Panel finds that bad faith has been established through Respondent’s attempt to attract, for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship or affiliation of the web site, per paragraph 4(b)(iv) of the Policy.

 

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 <costcogift.com> be transferred to the Complainant.


Michael A. Albert
Sole Panelist

Dated: October 7, 2008

 

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2008/d2008-1283.html

 

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