WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Life Alert Emergency Response, Inc. v. Debie Vanderlinden

Case No. DBIZ2002-00258

 

1. The Parties

The Complainant is Life Alert Emergency Response, Inc. of 16027 Ventura Blvd. Ste. 400, Encino, California 91436, United States of America, represented by Ralph C. Loeb, Esq. of Krane & Smith, 16255 Ventura Blvd., Ste. 600, Encino, California 91436, United States of America.

The Respondent is Debie Vanderlinden of 5780 Telegraph Trail, West Vancouver, B.C. V7W1R6, Canada.

 

2. The Domain Name and Registrar

The Domain Name in this dispute is <247.biz> ("the Domain Name").

The Registrar is Total Web Solutions d/b/a Total Solutions, of Bridge Building, Ladybridge Road, Cheadle Hulme, Cheshire, SK8 5LL, United Kingdom.

 

3. Procedural History

The Complaint was received by WIPO Arbitration and Mediation Center in electronic form on May 21, 2002, and as a hard copy on May 24, 2002. WIPO has verified that the Complaint satisfies the formal requirements of the Start-up Trademark Opposition Policy ("the STOP Policy"), as well as the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .BIZ ("the WIPO Supplemental STOP Rules") relating thereto and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.

On June 9, 2002, WIPO notified the Respondent of the Complaint and a Response was received by WIPO on June 27, 2002, in electronic form and on July 9, 2002, as a hard copy.

The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence and is due to submit his Decision by July 23, 2002.

 

4. Factual Background

(1) The Domain Name was registered by the Respondent on March 27, 2002.

(2) The mark "247" in which the Complainant alleges it has rights is not a registered trade mark.

(3) In March 2001, the Complainant purchased the domain name <247.com> for $100,000.00.

(4) In April 2000, the Complainant obtained the domain name <2470000.com>.

(5) In 2000, the Complainant purchased the phone number "(800)247-0000" for $35,000.00 and has been using it in its advertising since that time.

(6) The Complainant has been in the business of providing emergency medical response services for seniors on a 24 hour a day, 7 day a week basis for the last fifteen years.

(7) The Respondent is a private individual, whose business activities involve software and website design.

 

5. Partiesí Contentions

A. Complaint

The Complainant contends, inter alia, as follows:

(i) The Complainant has used and continues to use the mark "247" in connection with its emergency response services including, but not limited to, as part of the slogan "247 Protection."

(ii) The Complainantís "247.com" web site is active and is and has been used to advertise and disseminate information about the Complainantís 24 hour a day, 7 day a week emergency medical services for seniors.

(iii) The Complainantís "2470000.com" domain name will also be used in conjunction with a website which advertises and disseminates information about the Complainantís 24 hour a day, 7 day a week emergency response services for seniors.

(iv) The Complainantís use of the mark "247" has obtained secondary meaning and has been and is recognized by the public and the industry as associated with the Complainantís 24 hour a day, seven day a week, emergency medical response services for seniors. The Complainant, through its significant efforts, skills and experience, has acquired and enjoys substantial goodwill and a valuable reputation through the Complainantís "247" marks. The maintenance of high standards of quality and excellence for the Complainantís services has contributed to this valuable goodwill and reputation. The Complainant has expended and continues to expend a significant amount of time and money to advertise, offer for sale, and promote the Complainantís services through the "247" marks.

(v) Upon information and belief, the Respondent has no legitimate interest in the Domain Name. Complainant knows of no legitimate use of the mark (sic) <247.biz> by the Respondent and the website http://www. "247.biz" does not appear to be active at this time.

(vi) On information and belief, the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name to the Complainant for valuable consideration in excess of her out-of-pocket costs directly related to the Domain Name.

(vii) For the reasons discussed above, by registering the Domain Name the Respondent has acted in bad faith. Furthermore, any use of the Domain Name by the Respondent will create a likelihood of confusion with the Complainantís "247" marks as to the source of the Complainantís services and/or the Complainantís sponsorship affiliation and/or endorsement of the Respondentís use of the Domain Name.

B. Respondent

The following are some of the matters put forward by the Respondent:-

(i) "Our company i2iConsult has been working for 2 years on software that connects data to Microsoft's web cam software program called Netmeeting. Simply put, we have developed a "true virtual office". One that can exchange data, maintains records, takes payment and allows 2 people to speak to each other. Microsoft has developed the technology for 2 people to speak over the Internet and we added the data program. The i2iconsult program was initially developed to allow a medical discussion to take place while at the same time enabling a physician to view the patient's records. The patient and physician can also simultaneously email each other or use a chat window while speaking to one another."

(ii) "The company www.treatment.com of which I am also a principal is set to launch in September. Patients will be able to visit treatment.com and be able to enter any disease and see all the treatment options: drug, surgical, experimental, lifestyle, natural etc all on one page using fly out screens. Patients will feel comfortable that they have looked in to the majority of all treatment options. It has been an enormous task to work with various specialists in an effort to be creating a comprehensive database of treatments."

(iii) "Yesterday I also searched the Internet using google, which is a large search engine. I used the term "247" and found no mention of Lifealert.com or 247.com through the first 300 sites (30 pages X 10 sites per page). I then searched with 247 and included the following terms: seniors, protection, surveillance, emergency, monitor, and monitoring. For example, I searched for both terms together "247 monitoring" and in the first 100 websites (10 pages x 10) again I did not find 247.com or lifealert.com in any of the combinations with 247. Next I searched for lifealert ( both lifealert and life alert) and it was the first site listed on google as www.lifealert.com. These I believe are very important results, because they clearly demonstrate that this company has branded Life Alert and not 247."

(iv) "Our plans with 247.biz are this. We will be launching a business for personnel computer users that utilizes our i2iconsult technology. Clients that are unsure of how to search the internet or are having trouble with their software etc will be able to speak to us live. The webcam can be used to show us their monitor or keyboard. This is already possible now with netmeeting except that with the data transfer portion of our program we can now bill our clients over the Internet. In essence a viable business is now possible."

(v) "I have demonstrated above that we do in fact have a use for the domain. Using our software, which was developed over the past 2 years, there is the potential for a very lucrative personnel computer support business. The launch of this business is expected this winter. We will launch treatment.com this fall. We intend to launch another business ( it is not relevant and therefore was not discussed above) for tradeshows this winter as well."

(vi) "In closing I believe that 247 is a generic term that is used by thousands of companies in several other industries. I do not believe that by registering a domain such as www.2470000.com or www.247.com that it implies that you can now claim a mark."

C. Reply Declaration of Ralph C. Loeb

The Complainant has submitted a declaration by Mr. Loeb in reply to the Response. The Panelist has considered that declaration, but concludes that it does not assist him (or indeed the Complainant) and therefore declines to admit it into this Administrative Proceeding.

 

6. Discussion and Findings

According to paragraph 4(a) of the STOP Policy, the Complainant must prove that:

(i) The Domain Name is identical 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 or is being used in bad faith.

There is no doubt that the Domain Name is identical to the numerals 247 in which the Complainant claims to have rights.

However, the Panelist has come to the conclusion that the Complainant has failed to show that it has any rights in the numerals 247 as a trademark for the following reasons:

(i) "247" is inherently descriptive, meaning "24 hours a day for 7 days of the week". It seems to feature in at least 300 websites.

(ii) The Complainant has exhibited a brochure that advertises its services. It has apparently been in business for 15 years, has 300 employees, operates nationwide and has over 50,000 clients. The brochure promotes "Life Alert", makes no mention of either of the Complainantís "247" domain names, but does invite telephone calls to its number 1-800-247-000. Nowhere in the Complaint is there any evidence that the numbers "247" have come to be identified with the Complainant. The mere assertion of the acquisition of a secondary meaning (see para. 5A(iv) above)) is of no evidentiary value.

(iii) In support of the contention in para. 5(A)(i) above the Complainant exhibits a single sheet, dated May 24, 2001, which appears to be a page from its website. On this page the Complainant seems to be emphasizing the descriptive nature of the numerals "247", since in 7 out of their nine occurrences there is a space provided between "24" and "7".

(iv) It may be the case that the Complainant has built up goodwill in the numerals "247" in association with other matters, such as in <247.com> or its telephone number, but if that be the case it must be as a result of the addition of ".com" or other numerals.

The finding that the Complainant has failed to establish that it has any rights in <247> is sufficient for dismissing this Complaint, and it is therefore unnecessary for the Panelist to make any finding as to the Respondentís interests and/or conduct.

 

7. Decision

The Complaint is dismissed.

 


 

Christopher Tootal
Sole Panelist

Dated: July 22, 2002