LeitsätzlichesAT&T erreicht den Transfer der Domain attbroad.com. Obwohl pornografische Sites oder Sites mit Glücksspiel-Angeboten nicht per se den "Bad Faith" des Domain-Inhabers begründen, wird im Einzelfall darauf abgestellt, ob dieser den guten Ruf einer Marke für eigene Zwecke ausbeutet.
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fall Nummer: D2002-0960
Entscheidung vom 11. Dezember 2002
1. The Parties
The Complainant is AT&T ... United States of America.
The Respondent is Yong Li, ... China.
2. The Domain Name and Registrar
The disputed domain name <attbroad.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 16, 2002. On October 16, 2002, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On October 16, 2002, iHoldings.com Inc. d/b/a DotRegistrar.com 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. 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 October 24, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was November 13, 2002. The Respondent did not submit any response. Accordingly, the Center notified the Respondentâ€™s default on November 15, 2002.
The Center appointed Simon Minahan as the sole Panelist in this matter on November 28, 2002. 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 Complaint is uncontested. After review of the Complaint and accompanying materials and the panelâ€™s viewing of the site to which the contested name resolved as at the date of this decision, the following are accepted as fact:
4.1 The Complainant has significant national and international reputation as a supplier in the telecommunications industry and more particularly in the provision of cable broadband telecommunications service in the USA;
4.2 Further it has rights in the trademarks in the acronym letters "AT&T" or "ATT" when combined with certain other words relevant to that industry. It is accepted as fact that the AT&T brand is famous in the world and holds registered marks involving the "ATT" acronym in China, the Respondentâ€™s residence;
4.3 More particularly, it is accepted that the Complainant is the registered holder of <att.com> and has made use of the mark "ATT" in various combinations on the web for some time. Further it has various registration applications in respect of "AT&T BROADBAND"; <attbroadband.biz>; <attbroadband.info>; <attbroadband.name>; and <attbroadband.pro>.
4.4 The Complainant is the registrant for <attbroadband.com>. The domain name <attbroadband.com> resolves to AT&T Broadbandâ€™s primary website, " www.attbroadband.com";
4.5 The contested domain name instantly diverts visitors to a pop-up dialog box at "http://www.ownbox.com/treasure/cellphones.htm". The dialog box contains the text: "CONGRATULATIONS!!! YOUâ€™VE WON VIRTUAL REALITY CASINO! CLICK on OK and Get up to +200$ Bonus on your first deposit!" Visitors may then be either diverted to a cascade of gambling sites or are linked to a website headed "GETCONNECTED," which offers wireless, high-speed internet, television, long distance and local phone services where the logos for several competitors of AT&T appear on the page as links, depending on their selection of hyperlink. From there users may be further diverted to gambling and/or pornographic websites;
4.6 There has been no substantive use of the domain name the subject of this Complaint other than the present use;
4.7 There is no evidence or fact tending to support a trademark or other legitimate interest in the Respondent in respect of the disputed domain name (other than the present use of the domain name);
4.8 The Respondent is not the Complainantâ€™s licensee and is not endorsed, authorized, or sponsored by the Complainant.
5. Partiesâ€™ Contentions
The Complainant among other things, raises factual contentions in line with the matters outlined in the foregoing factual background. To the extent it makes further contentions of fact which are not necessary to this decision and are not otherwise specifically considered in this decision, the panel makes no finding or comment concerning these.
Further the Complainant contends that the domain name the subject of the Complaint is confusingly similar to its own trade marks, that the Respondent has no legitimate interest in the domain name and that the Respondent has registered and used the name in bad faith.
The Respondent did not reply to the Complainantâ€™s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The panel finds that the domain name is confusingly similar for the purposes of paragraph 4(a)(i) of the ICANN Policy to what the Complainant styles as its "AT&T Broadband" common law trade marks and its registered and common law trade mark AT&T.
The domain name <attbroad.com> combines the Complainantâ€™s mark "ATT" with a generic term "broad". The combination is highly suggestive of the supply of broadband services, an area where the Complainant is active commercially. In the circumstances the disputed domain name is inherently similar to the Complainantâ€™s mark and likely to be confusing to the public on face value as suggesting either an operation of the Complainant or one associated with or endorsed by it. The panel has particular regard to and agrees with the comments made in this regard in the UDRP decision AT&T Corp. v. John Zuccarini d/b/a RaveClub Berlin, Case No. D2002-0666, at 4 (WIPO September 5, 2002),; Telstra Corp. Ltd. v. 11/Shinpyo Kang, Case No. D2001-0623, at 5 (WIPO June 28, 2001); and Pivotal Corp. v. Discovery Street Trading Co., Case No. D2000-0648, at 5 (WIPO August 14, 2000).
It also notes the numerous UDRP decisions in which the Complainantâ€™s trademark rights in "ATT" have previously been accepted and upheld.
The panel does not consider it immediately necessary or relevant, in the present case, to have regard to the use of the disputed domain name in determining the question of confusing similarity, although it is noted that the fact that the domain name presently resolves to a site (among others) offering telecommunications products and services, heightens the possibility of confusion. Further, beyond acknowledging the fame of the Complainantâ€™s trademark as outlined above, the panel finds it unnecessary to and does not decide this question by reference to the issue of fame or the concept of "dilution".
B. Rights or Legitimate Interests
In the absence of any submission or contention by the Respondent asserting a legitimate interest in the domain name and in the light of the use being made of the domain name, the panel finds that the Respondent lacks any right in or has made or is making legitimate use of the domain name.
The panel regards it reasonable to conclude on the evidence before it that the Respondent was aware of the Complainantâ€™s trademark in the name and indeed selected the domain name precisely because of its similarity to those trademarks. In the face of the evidence of the use to which the name is presently being put the panel regards it as indubitable that the Respondent is using the domain name in a commercial venture.
In this aspect the panel has regard to and adopts the reasoning in Charles Schwab & Co., Inc. v. Polanski, Case No. D2001-0959 (WIPO September 21, 2001), in so far as there was no apparent reason for the Respondent to have chosen the contested domain name other than to profit by its fame and by the traffic generated by the likely initial expectation of users that it is a name associated with the Complainant and its services.
The panel also has regard to the remarks made in Nintendo v. Baltic Consultants Limited, Case No. D2002-0449 (WIPO July 26, 2002), with respect to the inference to be drawn from such commercial use and lack of apparent association between the Respondentâ€™s name and activities and the domain name and, conversely the apparent connection with the high profile name and trade marks of the Complainant.
C. Registered and Used in Bad Faith
The domain name is presently being used in bad faith. The use of the name does not, on the face of it, appear to be directed to inflicting any deliberate damage on the Complainant. However it does appear, inescapably, to be directed to "free-ride" on and profit from the Complainantâ€™s reputation in its mark. While the panel does not regard pornographic sites nor gambling sites to constitute per se bad faith use, in the context of the lack of interest in the Respondent in the domain name and the apparent commercial benefit the Respondent derives from association and confusion with the Complainant via the domain name it seems the resolution of the domain name to such sites is solely motivated by profit. Further there is no natural connection between such sites and the area of the Complainantâ€™s reputation.
On the other hand to the extent that the domain name does resolve to web pages or sites relating to communications products or services, none of these is associated with the Complainant nor do they appear to be distinctly differentiated as comparative or evaluative sites.
In the premises the panel regards the use as falling squarely within 4b(iv) of the UDRP in that it is a use by which the Respondent "intentionally attempted to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with the complainantâ€™s mark as to the source, sponsorship, affiliation, or endorsement of that web site or location or of a product or service on that web site or location."
The panel does not however consider it necessary to find any sustained confusion of users as to the Complainantâ€™s association with the sites linked with the domain name after the initial moment of calling up the pages to which the domain name resolves.
In this vein, the panel respectfully adopts the comments of the panel in Ticketmaster Cases:
"By such use the Respondent intentionally attempts to attract Internet users to an on-line location, which creates a likelihood of confusion with the Complainantâ€™s mark as to the source, sponsorship, affiliation, or endorsement of that location. The fact that such confusion may be dispelled, and replaced by annoyance or disgust once the nature of the site is revealed, does not negate the fact of initial confusion."
(Ticketmaster Corp. v. Iskra Service, Case No. D2002-0165 (WIPO April 8, 2002); Ticketmaster Corp. v. Polanski, Case No. D2002-0166 (WIPO April 8, 2002); Ticketmaster Corp. v. Dotsan, Case No. D2002-0167 (WIPO April 8, 2002).
The panel does not regard it as necessary to go beyond this opportunistic use of the noted similarity between domain name and the Complainantâ€™s mark to find bad faith use.
As to registration, in the absence of any contradictory submission or evidence and in light of the other matters found in this decision, namely the lack of the Respondentâ€™s interest in the domain name, the bad faith use by way of exploitation of the Complainantâ€™s name and the lack of any evidence of any other use of the domain name, the panel regards it as reasonable and is willing to infer bad faith registration of the name. However the panel does not accept the Complainantâ€™s contention that, in the circumstances, it is an inescapable or reasonable inference is that Respondent chose to register the disputed domain name in order to tarnish or dilute Complainantâ€™s famous marks. The panel finds no evidence of malice toward the Complainant but rather thinks the Respondent was and is concerned only to profit by exploiting its profile.
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 <attbroad.com> be transferred to the Complainant.