WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BellSouth Intellectual Property Corporation v. Phayze Inc.
Case No. D2003-0336
1. The Parties
The Complainant is BellSouth Intellectual Property Corporation, c/o Jacqueline A. Gregorski, of Wilmington, Delaware, United States of America, represented by Kilpatrick Stockton, LLP, of the United States of America.
The Respondent is Phayze Inc., of Paris, France.
2. The Domain Name and Registrar
The disputed domain name <bellsotuh.net> is registered with IDR Internet Domain Registry Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 1, 2003. On May 2, 2003, the Center transmitted by email to IDR Internet Domain Registry Ltd. a request for registrar verification in connection with the domain name at issue. On May, 13, 2003, IDR Internet Domain Registry Ltd. 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 June 13, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on June 5, 2003.
The Center appointed Anders Janson as the sole panelist in this matter on June 16, 2003. 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 asserted, and provided evidence in support of, the following facts, which the Panel finds established.
The Complainant is BellSouth Intellectual Property Corporation, a United States Corporation incorporated under the laws of the State of Delaware. BellSouth Corporation and its affiliates are in the business of providing a variety of telecommunications services and related goods in connection with trademarks incorporating the term "BELL". The Complainant is an affiliated BellSouth company that owns and manages BellSouth Corporationís intellectual property assets, which has been assigned to it.
The Complainant, or its affiliates, is the owner of numerous trademark registrations, inter alia the following subsisting registrations of, among others, the marks "BELL", "BELLSOUTH", "BELLSOUTH.NET" and "BELLSOUTH PRODUCTS", covering a variety of goods and services.
- BELL, US Trade Marks Registration No 1,565,562, registered November 14, 1989; for telephone and telephone accessories, installing and maintaining telecommunication services to others etc.
- BELL, France Trade Mark Registration No 1602960, registered November 20, 1989; for scientific, nautical geodesic, optical and teaching apparatus and instruments etc.
- BELLSOUTH, US Trade Mark Registration No 1,565,559, registered November 14, 1989; for customer premises telecommunication networks and parts etc.
- BELLSOUTH, France Trade Mark Registration No 1517454, registered March 3, 1989; for advertising, distribution of prospectuses and telecommunications etc.
The Panel notes that the registration dates of all of the above referenced registrations as well as the vast majority of the registration certificates attached to the Complaint predates the date of registration of the disputed domain name by the Respondent.
The Complainant and its affiliates have extensively promoted goods and services in connection with the BELL marks through printed media and through electronic media at its websites "www.bellsouth.com", "www.bellsouth.net", and "www.bellsouth.org". The Panel finds it established that the BELL Marks are much recognized trademarks among customers and that the trademarks are both distinctive and famous. The BELLSOUTH mark or a slight variation of the same have been used by the Complainant or its affiliates with a wide variety of communications-related goods and services, including cellular and other integrated telecommunication services, and internet access services around the world. The Complainant and its affiliates serve more than 19 million customers in 16 countries worldwide.
The Respondent has a stated contact address in Paris, France. All correspondence from both the Complainant and the Center to the stated contact addresses has been returned undelivered due to an unknown address. The disputed domain name <bellsotuh.net> was initially registered with I.D.R Internet Domain Registry Ltd., on August 14, 2002.
The Complainant alleges that the disputed domain name <bellsotuh.net> was previously linked to "www.amateurvideos.nl". The site is presently linked to, among other websites, "www.hankypankycollege.com". Both sites contain pornographic material. The Panel finds, in view of the above and the fact that the Respondent has not submitted a response, that the Complainants allegations that the domain name <bellsotuh.net> did resolve to "www.amateurvideos.nl", a sexually explicit adult website, is undisputed and shall be considered established in this matter.
5. Partiesí Contentions
The Complainant contends that:
- The disputed domain name is identical and confusingly similar to a trademark or service mark in which the Complainant has rights;
- The Respondent has no rights or legitimate interest in respect of the domain name;
- The domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interest in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith
A. Identical or Confusingly Similar
The domain name at issue is <bellsotuh.net>. The Complainant is the holder of several registered trademarks containing the mark "BELL", including "BELLSOUTH". The Complainant has provided statements to support the supposition that the disputed domain name and the name and marks of the Complainant are confusingly similar. The domain name is a common misspelling of, and is virtually identical and confusingly similar to, the Complainantís BELLSOUTH mark.
The Panel notes the misspelling is due to a switch of the letters T and U, which must be regarded as typosquatting. The letters T and U are also situated closely on the keyboard and the likelihood of misspelling is considerable.
The Panel considers it obvious that the disputed domain name is identical with and confusingly similar to the Complainantís mark. The Panel therefore holds that the Complainant has established element (i) of Paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant and its predecessors first use of the BELL mark predates any use the Respondent may have made of the domain name as a trade name, domain name, or mark. In addition, the Complainantís registration of the BELLSOUTH trademark in the USA predates the Respondentís registration of the domain name by more than 10 years.
The disputed domain name <bellsotuh.net> links to a website of pornographic nature, previously "www.amatuervideos.nl" and presently "www.hankypankycollege.com". There are no apparent connection between the disputed domain name and the websites. There is no other information, which indicates that the Respondent has any legitimate interest in the name.
The Respondent has failed to file a Response in accordance with the Rules, Paragraph 5 and has no obvious connection with the disputed domain name. This and the fact that the Complainant asserts that the Respondent has no right or legitimate interest in the name is enough to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest exists. In view of the above, the Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name. Considering the fact that the disputed domain name links to websites with explicit adult content with no apparent connection with the domain name <bellsotuh.net>, it must be regarded evident that the Respondent has no legitimate interest in the name. The Panel therefore holds that the Complainant has established element (ii) of the policyís Paragraph 4(a).
C. Registered and Used in Bad Faith
Considering the Complainantís well known trademarks containing the word "BELL", including among others "BELLSOUTH", which is a registered trademark in, inter alia, the USA and France, and the subsisting registration of the BELL marks, the Respondent may not claim a bona fide use of the disputed domain name. The Respondent cannot plausibly claim never to have heard of the "BELL" marks. Further more, the fact that Respondent has not submitted a response to the Complaint, in accordance with the Rules, Paragraph 5, and the fact that the Respondent appears to have no apparent connection to the name "BELLSOTUH" is an indication of bad faith. Finally, the fact that the domain name <bellsotuh.net> links to pornographic websites with no apparent further connection to "BELLSOTUH" is in itself a demonstration of the respondents bad faith.
The Panel therefore concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.
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, <bellsotuh.net> be transferred to the Complainant.
Dated: June 26, 2003