WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cingular Wireless LLC v. Israel Aceves
Case No. D2003-0154
1. The Parties
The Complainant is Cingular Wireless LLC ("Cingular"), an entity organized and existing under the laws of Delaware, United States of America ("USA") maintaining its principal place of business in Atlanta, Georgia, United States of America.
The Respondent is an individual resident of Calabasas, California, United States of America.
2. The Domain Names and Registrar
The disputed domain name is <mycingularpcs.com> registered with Register.com, Inc. of New York, New York, United States of America.
3. Procedural History
Cingular filed a Complaint with the WIPO Arbitration and Mediation Center (the "Center") on February 26, 2003. The Center subsequently 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").
The Center notified the Respondent of the Complaint on March 5, 2003. The Respondent submitted no response to the Complaint. The Center appointed the undersigned as sole panelist in this matter on April 8, 2003.
4. Factual Background
Cingular was formed in late 1999 as a merger of two of the largest providers of wireless telecommunications services in the United States. On September 8, 2002, Cingular filed an application for U.S. registration of CINGULAR as a service mark for a broad range of telecommunications services, wireless telephones, and related services including on-line shopping and catalogue services. On October 2, 2002, Cingular issued press releases announcing its adoption of the CINGULAR mark. On October 5, 2002, the respondent registered the domain name <mycingularpcs.com>.
Cingular commenced use of the CINGULAR mark on January 1, 2001. In the year ended December 31, 2002, Cingular had more than $14.7 billion in revenues under the CINGULAR mark and served more than 22 million customers. Cingular has invested more than $100 million on advertising, promoting, and marketing CINGULAR wireless services in the United States. Cingular's application filed September 8, 2000, matured into U.S. Reg. No. 2,596,041 for CINGULAR covering numerous goods and services in the wireless telecommunications field including "wireless telephones", "telephone accessories", and "on-line shopping and catalog services."
Respondent is an individual resident of Calabasas, California. Respondent operates an active "website" associated with the domain name <mycingularpcs.com> featuring images of various models of wireless telephones and offering hands free devices and other wireless telephone accessories for sale. Respondent's "website" has resulted in actual confusion of potential purchasers as recorded in correspondence submitted by Cingular. Respondent did not respond to correspondence from Cingular demanding that he cease use of the disputed domain name. Respondent has also defaulted in this proceeding.
5. Parties’ Contentions
Complainant contends that the domain name <mycingularpcs.com> is confusingly similar to the registered service mark, CINGULAR, in which Complainant has rights. Complainant further contends that Respondent has no rights or genuine interests in the domain name <mycingularpcs.com>. Finally, Complainant alleges the domain name <mycingularpcs.com> was registered and is being used in bad faith.
Respondent has served to response to the Complaint.
6. Discussion and Findings
Paragraph 4(a) of the Policy entitles a Complainant to seek an administrative transfer of a second level Internet domain name in the event that it "proves," to the satisfaction of the Panel, three predicates: (1) an accused domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) a registrant has no rights or legitimate interests in respect of the accused domain name; and (3) a registrant’s domain name has been registered and is being used in bad faith. A fact is "proved," for purposes of the Policy, when it is "more likely to be true than not true based on the evidence." Ciccone v. Parisi, WIPO Case No. D2000-0847 (October 12, 2000).
A. Similarity of the Disputed Domain Name and Complainant’s Mark
Respondent has not denied that the domain name, <mycingularpcs.com>, is confusingly similar to Complainant's registered CINGULAR mark, and was adopted by Respondent precisely because of that confusing similarity. The Panel is satisfied that the domain name <mycingularpcs.com> is confusingly similar to Complainant's arbitrary and well-known CINGULAR mark.
B. Rights or Legitimate Interests
Complainant has presented evidence that tends to show that Respondent lacks any rights or legitimate interests in the disputed domain name. Respondent has not contested Cingular's allegations or presented any evidence of rights or legitimate interests in Respondent. Based on the entirety of the record including Respondent's default in responding to the Complaint, the Panel concludes that Complainant has proved, to the Panel’s satisfaction, that Respondent has no rights or legitimate interests in the disputed domain name.
C. Bad Faith Registration and Use
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances which, if found by a Panel to be present, constitute "evidence of the registration and use of a domain name in bad faith." The Policy makes clear that a "bad faith" determination can be based on circumstances other than the four examples listed in Paragraph 4(b) of the Policy.
In the present case, the Respondent does not deny having registered and used the domain name <mycingularpcs.com> in bad faith. Respondent is engaged in activity -- offering wireless telephone accessories for sale via an on-line shopping "website" -- that (a) is directly competitive with Cingular business activity, (b) literally infringes Cingular's U.S. Reg. No. 2,596,041, and (c) has caused actual confusion. Based on the entirety of the record including Respondent's default, the Panel is satisfied that it is more likely true, than not true, that Respondent registered and has used the domain name <mycingularpcs.com> in "bad faith" within the meaning of the Policy.
I find in favor of the Complainant. The disputed domain name is confusingly similar to a service mark in which the Complainant has rights. Complainant has proved to my satisfaction that the Respondent lacks rights or legitimate interests in the disputed domain name and the disputed domain name has been registered and used in bad faith.
I therefore decide the disputed domain name, <mycingularpcs.com>, should be transferred to Complainant.
James W. Dabney
Dated: April 21, 2003