Winwind Oy v. MustNeed com Case No. D2009-1389 The Parties




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WIPO Arbitration and Mediation Center



ADMINISTRATIVE PANEL DECISION




Winwind Oy v. MustNeed.com




Case No. D2009-1389



1. The Parties

The Complainant is Winwind Oy of Helsinki, Finland, represented by Papula-Nevinpat, Finland.


The Respondent is MustNeed.com of Taipei, Taiwan.


2. The Domain Name and Registrar

The disputed domain name is registered with Moniker Online Services, LLC.




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2009. On October 20, 2009, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On October 20, 2009, Moniker Online Services, LLC 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” or “UDRP”), 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 November 2, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 22, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 23, 2009.
The Center appointed Keith Gymer as the sole panelist in this matter on December 4, 2009. 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, WinWind Oy, is a Finnish company, with the trade name registered as of April 13, 2000. It has a website at “www.winwind.fi”. The domain name was registered in 2001. The company is in the business of supplying wind turbines.


The Complainant has various trade mark registrations for the mark in the form “WinWinD” (with a minor device element). The earliest registration is Finnish mark 225934, which has “WinWinD” as the dominant distinctive element, above the words “suomalaista tuulivoimaa”, which reportedly refer descriptively to “Finnish windpower”. This registration was filed on February 13, 2002, and registered as of November 29, 2002. There is a corresponding Community Trade Mark registration, for the “WinWinD” mark above the descriptive English wording “generating business”, which was also filed on February 13, 2002, for which the registration was granted as of April 15, 2005.
The Respondent, MustNeed.com, is an entity of uncertain legal status, with a PO Box address in Taipei, Taiwan. The domain name , was created on May 30, 2004, according to the WhoIs record provided by Moniker.com, which was most recently updated on May 18, 2009. However, the nature of that update is not specified, so the presumption is that MustNeed.com has been the registrant since the date of creation.


5. Parties’ Contentions




A. Complainant

The Complainant made the following submissions (edited extracts from Complaint):


The domain name is identical and confusingly similar to trademarks in which the Complainant has rights;
- Community Trade Mark registration No. 002574705 WinWinD - generating business - (device), filing date on February 13, 2002 and registered on April 15, 2005;
- Finnish Trade Mark registration No. 225934 WinWind -Suomalaista tuulivoimaa- (device), filing date on February 13, 2002 and registered on November 29, 2002;
Both of the above-mentioned trade mark registrations cover the following goods and services:
- Class 7: Machines, especially turbines and generators for producing electricity; connecting apparatus parts and parts for power transmission apparatus; turbine operated equipment for producing electricity and energy storage.
- Class 9: Electrical apparatus and instruments for monitoring and controlling electrical equipment, motors and generators; transformers.
- Class 37: Maintenance and repair services and installation services.
- Class 42: Research and development and technical consultation services for monitoring and controlling electrical apparatus such as transformers, motors, engines and generators; measuring quantities and controlling electrical quantities in electrical equipment such as transformers, motors, engines and generators.
- Chinese trade mark registration No. 5196694 Winwind (device), filing date on March 7, 2006 and registered on March 28, 2009 for the goods “machines of wind power and waterpower”;
- Chinese trade mark registration No. 5196695 Winwind Oy, filing date on March 7, 2006 and registered on March 28, 2009 for the goods “machines of wind power and waterpower”;
- Chinese trade mark registration No. 5196697 Winwind (device), filing date on March 7, 2006 and registered on March 28, 2009 for the goods “machines of wind power and waterpower”;
- Finnish Trade name Winwind Ltd (Business id -number 1587674-2), registered on April 13, 2000 for the field of activity “Electrical engineering design”.
- The following domain name registrations:
- “www.winwind.fi” registered on September 7, 2001;

- “www.winwind.net” registered on August 13, 2009;

- “www.winwind.asia” registered on July 23, 2008;

- “www.winwind.biz” registered on July 21, 2008.


The domain name is identical and confusingly similar to the Complainant’s above-mentioned earlier rights. The Respondent is using the domain to the identical goods and services as the Complainant is using its trade marks.
The Respondent has no rights or legitimate interests in respect of the domain name;
The Complainant considers that the Respondent has no legal rights to for the domain name based on the following grounds:
- Based on to the best of Complainant’s knowledge the Respondent does not practice any business activity, which relates to the producing of wind power or any other kind of power;
- Based on to the best of the Complainant’s knowledge the Respondent has not applied or registered trade marks relating to the same field of activity as “www.winwind.com” is acting.
- The website “www.winwind.com” includes several links with few of these re-directing to another websites. These websites do not include any information which relates energy, wind turbines, electrical engineering, etc.
The domain name was registered and is being used in bad faith.
The Complainant considers that the disputed domain name has been registered primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or to a competitor of the Complainant, for valuable consideration in excess of the domain name registrant’s out-of-pocket costs directly related to the domain name.
According to the Complainant, this claim can be based on several facts:
1) As mentioned above, the Respondent does not practice any business activity which relates to the producing of wind power or any other kind of power;
2) The Respondent indicates at the top of its website “www.winwind.com” that “This Domain Name Might Be For Sale!!! Please contact us for more information”; and
3) The Respondent, MustNeed.com has been repeatedly accused for registering domain names in bad faith. According to the Database of WIPO relating to the UDRP cases there exists eight (8) cases in which the Respondent has faced similar claims. In seven of these cases the contested domain name were transferred to the complainant. None of these cases relates to the field of activity in which the Respondent is acting. The Complainant considers that the Respondent has been acting on bad faith when registering the domain name .
Therefore, the Respondent has no legal rights to said domain name and the Complainant respectfully asks that the domain name be transferred to the Complainant.
B. Respondent
The Respondent did not make any reply to the Complainant’s contentions.


6. Discussion and Findings

In order for the Panel to decide to grant the remedy of transfer of a domain name to a Complainant under the Policy it is necessary that the Complainant must prove, as required by paragraph 4(a) of the Policy, that


(i) the contested 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.
The fact that the Respondent has not provided a Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, paragraph 5(e) of the Rules expressly requires the Panel to “decide the dispute based upon the complaint”. Under paragraph 14(a) of the Rules in the event of such a “Default” the Panel is still required “to proceed to a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences therefrom as it considers appropriate.”
Consequently, the Panel must proceed with at least a basic assessment of the Complaint on its merits.

A. Identical or Confusingly Similar

The domain name is .


The Complainant has demonstrated that it registered the Finnish Trade Name, Winwind Oy, and the trade mark WinWinD (with minor device and descriptive words) predating the date of creation of the domain name.
In these circumstances, the Panel accepts that the domain name is identical to a trademark and trade name in which the Complainant has rights, and the requirements of Paragraph 4(a)(i) of the Policy are met.

B. Rights or Legitimate Interests

Under paragraph 4(c) of the Policy, any of the following circumstances, (by way of example) might serve to demonstrate a Respondent’s rights or legitimate interests to a domain name for purposes of Paragraph 4(a)(ii):


(i) before any notice to the Respondent of the dispute, 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; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Respondent has made no express claims to any rights of its own; clearly the Respondent “MustNeed.com” is not commonly known by the domain name; nor does it claim to have made any legitimate use of the domain name.
The Panel does not accept the implication in the Complainant’s submissions that it would be necessary for the Respondent also to have a business interest in the field of wind power for it to have legitimate interests in the domain name. The Panel can envisage other reasonable legitimate interests, for example, use for a site about sailboat racing.
However, the evidence in the Complaint does suggest that the Respondent has simply adopted the domain name to take advantage of public recognition of the Complainant’s name and business, to set up a website façade, which initially looks as if it relates to wind power and wind turbines, but apparently only has links which are manipulated to produce contrived search results, aimed at generating Pay-Per-Click income for the website operator (who is unidentified on the website). In the Panel’s view this is not a bona-fide offering or use, but is nothing more than a form of parasitic exploitation of the Complainant’s name and business.
Consequently, the Panel holds that the Respondent has no rights or legitimate interests in respect of the domain name; the requirements of paragraph 4(a)(ii) of the Policy are met.

C. Registered and Used in Bad Faith

Under paragraph 4(b) of the Policy, the following are relevant examples of the sort of conduct which a Panel may take (without limitation) as evidence of registration and use in bad faith:


(i) circumstances indicating that [Respondent has] registered or [Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) [Respondent has] registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct; or
(iii) [Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] website or location or of a product or service on [Respondent’s] website or location.
The Complainant has asserted that the example of paragraph 4(b)(i) is relevant as the website indicates that “This Domain Name Might Be For Sale!!!”
In the Panel’s view a mere indication that a domain name is for sale, without more, is not sufficient to support the assertion that the Respondent would necessarily have been seeking “valuable consideration in excess of” any documented out-of-pocket costs.
However, the evidence certainly shows that the Respondent has been cited in a significant number of other Complaints under the Policy, which it has lost. In the Panel’s view, absent any alternative explanation from the Respondent, this can be taken to demonstrate conduct consistent with the example of paragraph 4(b)(ii).
For the same reasons as in B. above, the Panel also considers the example of paragraph 4(b)(iv) of the Policy to be applicable in the present case.
By analogy, and for the purposes of the Policy, the Panel therefore finds that the domain name has been registered and is being used in bad faith and that paragraph 4(a)(iii) of the Policy is also met.


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 be transferred to the Complainant.



                                          

Keith Gymer



Sole Panelist
Dated: December 18, 2009

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