WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dr. Ing. h.c.F. Porsche AG v Wilson Inc.
Case No. D2002-0172
1. The Parties
Complainant is Dr. Ing. h.c.F. Porsche AG, represented by Dr. Rolf Diekmann, Attorney-at-Law, Lichtenstein, Körner and Partners, Heidehofstrasse 9, DE-70184, Stuttgart, Germany, hereinafter the "Complainant".
Respondent is Wilson Incorporated, P.O. Box 213, Port Villa, Vanuatu, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name in dispute is <perkyporsche.com>.
The registrar for the disputed domain name is Melbourne IT Ltd., Level 2, 120 King Street, Melbourne Victoria 3000, Australia.
3. Procedural History
The essential procedural history of the administrative proceeding is as follows:
(a)Complainant initiated the proceeding by the filing of a complaint, received by the WIPO Arbitration and Mediation Center ("WIPO") on February 20, 2002, by electronic mail, and in hard copy February 25, 2002. On March 1, 2002, WIPO sent an Acknowledgement of Receipt of the Complaint to the Complainant.
(b)On March 1, 2002, WIPO transmitted a Request for Registrar Verification to the registrar, with the Registrarís verification received by WIPO March 3, 2002, confirming that the domain name at issue was registered through Melbourne IT Ltd.
(c)On March 4, 2002, WIPO transmitted Notification of the Complaint and Commencement of the Administrative Proceeding to the Respondent, after having satisfied itself that the Complainant had complied with all formal requirements pursuant to the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 ("the Policy"), the Rules for the Policy approved by ICANN on October 24, 1999 ("the Rules"), and the WIPO Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules").
(d)No Response has been submitted by the Respondent. Accordingly, WIPO issued a Notification of Respondent Default on March 26, 2002.
(e)In view of the Complainantís designation of a single panelist, WIPO invited Mr. Peter Nitter to serve as a panelist. Having received his Statement of Acceptance and Declaration of Impartiality and Independence, WIPO formally appointed him as Sole Panelist on April 10, 2002, and transmitted the case file to the Administrative Panel. The parties were notified of the Appointment of Administrative Panel on April 10, 2002.
(f)The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules. The Administrative Panel shall issue its Decision based on the complaint, the Policy, the Rules and the Supplemental Rules. The proceedings have been conducted in English.
4. Factual Background
After the Complainantís assertions, undisputed by Respondent because of its default, and supported by the documents enclosed as annexes to the complaint and the Panelís own investigations through visits to the web site corresponding to the disputed domain name, the Panel finds the following:
Complainant has been a maker of sports cars under the name of PORSCHE for more than 50 years, and is the owner of numerous trademarks consisting of or incorporating the word PORSCHE in most countries around the world. The Complainant has shown that the trade mark PORSCHE is very well known, and enjoys a high reputation throughout the world. The Complainant operates its main websites under the domain names <porsche.com> and <porsche.de>.
Complainant has attempted to send a Cease and Desist letter via e-mail to Respondent demanding the contested domain name to be transferred to him. This attempt was in vain, as the e-mail address stated in Respondentís contact details is inactive.
The Respondent has registered the domain name <perkyporsche.com>. The web site corresponding to this domain name is offering explicit pornographic material against payment.
5. Partiesí Contentions
The Complainant asserts that:
The domain name at issue is confusingly similar to Complainantís trademark PORSCHE.
Complainantís trademark is very well-known and distinctive, and is integrated in its entirety into the contested domain name. PORSCHE is the relevant and distinctive part of the domain name, and the addition of "perky", meaning "happy and full of energy" is irrelevant. Internet users will believe that a website available under the domain name at issue, is at least sponsored by or affiliated to the owner of the trademark which forms a component of the domain name.
The Respondent has no right or legitimate interest in respect of the domain name at issue.
There are no business relationships between the parties whatsoever. There are no indications that Respondent would have bona fide interests in relation to the trademark PORSCHE, nor is he commonly known by the domain name. The contested domain name was registered with the intention of attracting Internet users to Respondentís commercial web site by taking advantage of a possible confusion with Complainantís official web sites.
The domain name was and is registered and used in bad faith.
The domain name at issue is being used for pornographic content. Respondent must have been aware of Complainantís prestigious and well-known trade mark, and has thus acted in bad faith by registering and using a domain name which so closely resembles this trade mark. The incomplete and false information provided by the Respondent regarding his contact details is moreover an element of bad faith.
The Complainant requests the Administrative Panel issue a decision that the contested domain name must be transferred to the Complainant.
The Respondent has not submitted a response, and is thus in default. Respondent has neither made any submissions whatsoever after the Notification of Respondent Default.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three tests which a complainant must satisfy in order to succeed. The Complainant must satisfy that:
(i)the 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 such domain name; and
(iii)the domain name has been registered in bad faith and is being used in bad faith.
6.1 Identical or confusingly similar to a trademark or a service mark
The domain name at issue is not identical to Complainantís trade mark PORSCHE, and the question is therefore whether the domain name at issue is confusingly similar to said trade mark.
Respondentís domain name <perkyporsche.com> contains Complainantís distinctive house mark PORSCHE, thus creating a certain visual and phonetical similarity between Respondentís domain name and Complainantís trade mark. PORSCHE is to be considered as a famous mark on the basis of its worldwide reputation in connection with the sale of sports cars. Complainantís trade mark is furthermore the most distinctive part of the contested domain name, and due to the worldwide fame of this trade mark, the addition of the generic term "perky" cannot be deemed sufficient to prevent the risk of unfounded identity between the contested domain name and Complainantís trade mark.
Thus, the Panel finds that Respondentís domain name <perkyporsche.com> is confusingly similar to Complainantís trade mark PORSCHE.
6.2 Rights or legitimate interest in the domain name
The Panel has considered the allegation by the Complainant as to the lack of rights or legitimate interests of the Respondent in respect of the domain name at issue, including the Complainantís contention about the lack of any legitimate intellectual property or bona fide right of the Respondent to the contested domain name. As a result of default, these allegations have not been contested by the Respondent.
The Panel has visited the www.perkyporsche.com web site of the Respondent in order to investigate whether there could be found any evidence as to Respondentís rights or the legitimacy of the interest of the Respondent in the contested domain name. The Panel did not find any such evidence.
Thus, the Panel finds that the Respondent has no rights or legitimate interest in the contested domain name.
6.3 Registration and use in bad faith
Respondent has not invoked any circumstances which could invalidate Complainantís allegations and evidence with regard to the Respondentís registration and use of the domain name in bad faith.
Complainantís trade mark is very well known throughout the world, and has thus in all probability been known to Respondent when registering the domain name at issue. The Panel finds Respondent highly unlikely to have registered the domain name at issue without being familiar with Complainantís trade mark.
Respondentís registration and continuous use of the contested domain name must therefore be deemed as an intentional attempt to divert Internet users to its web site <www.perkyporsche.com> , taking advantage of the likelihood of confusion with Complainantís mark as to the source, sponsorship, affiliation, or endorsement of this web site.
The Respondent has linked the domain name at issue to its own commercial web site which contains pornographic material.
The Complainant has furthermore shown that the contact details given by the Respondent are incomplete, thus making it impossible to communicate with him. This may be considered as an attempt to avoid identification and to evade the jurisdiction of the Panel.
Pursuant to Paragraph 4(b) and previous Administrative Panel Decisions, the aforementioned documented circumstances constitutes evidence of registration and use of a domain name in bad faith.
The Panel therefore finds that the Respondent has registered and used the domain name at issue in bad faith.
The Panel has found that the domain name <perkyporsche.com> is confusingly similar to a trade mark held by the Complainant, and that the Respondent has no rights to or legitimate interest in said domain name. The Panel has further found that the domain name has been registered in bad faith, and that it has been and is being used in bad faith.
Therefore, pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel decides to request that the domain name <perkyporsche.com> be transferred to the Complainant.
Peter G. Nitter
Dated: April 29, 2002