WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Siemens AG v. Aztronet Digital, Jorge Bauer, Jorge Ramirez
Case No. D2006-1025
1. The Parties
The Complainant is Siemens AG, Erlangen, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Aztronet Digital, Jorge Bauer, Jorge Ramirez, Guadalajara, Jalisco, Mexico.
2. The Domain Names and Registrar
The disputed domain names <siemens-ag.com> and <siemens-ag.net> are registered with GKG.NET, INC. (formerly GK Group LLC).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 11, 2006. On August 11, 2006, the Center transmitted by email to GKG.NET, INC. (formerly GK Group LLC) a request for registrar verification in connection with the domain name <siemens-ag.com>. On August 12, 2006, GKG.NET, INC. 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 August 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 6, 2006. The Response was filed with the Center on September 6, 2006.
The Center appointed Arne Ringnes as the sole panelist in this matter on October 6, 2006. 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.
On September 12, 2006, the Complainant’s representative sent an e-mail to the Center requesting that the domain name <siemens-ag.net>, which was bought by the Respondent after the Complaint was filed, be included in the proceedings. The Panel decided to include the domain name <siemens-ag.net> in the proceedings.
On November 24, 2006 the Panel issued a Panel Order requesting for a registrar verification in connection with the domain name <siemens-ag.net>. On November 28, 2006, GKG.NET, INC. 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.
By Panel Order No. 2 dated December 4, 2006, the Respondent was given five days to comment the registrar information and the decision due date was extended accordingly. The Center did not receive any response to Panel Order No 2.
4. Factual Background
The Complainant is the owner of German trade mark registrations No. 2077533, 30075283, 39946996 and the international trade mark registration No. IR 504324.
The Complainant is one of the world’s largest electrical engineering and electronic companies with customers in 190 countries. The Complainant was founded more than 150 years ago.
5. Parties’ Contentions
The Complainant submits that the disputed domain names are confusingly similar to the Complainant’s mark SIEMENS. The letters “ag” only refers to the German term “Aktiengesellschaft” and is of a descriptive character. It is quite clear that the Respondent has sought to take advantage of Internet users who are seeking to access the Complainant’s websites, the Complainant submits.
The Complainant further submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names, as the Respondent has never been one of the Complainant’s representatives or licensees. Further, it is obvious that the Respondent had knowledge of the Complainant’s trade mark when registering the disputed domain names. The Complainant alleges that the disputed domain names were selected by the Respondent with the intention to attract - for illegitimate purposes - Internet users to the Respondent’s websites.
Further, the Complainant submits that the disputed domain names were registered and are being used in bad faith as the Respondent registered the disputed domain names in order to take advantage of the fact that the Complainant’s trade mark has a strong reputation and thereby confuse consumers and profit from such confusion. The Complainant further submits that the disputed domain names were registered and are being used to facilitate dilution, cyber squatting or infringement of the Complainant’s trade mark. In particular, the Respondent’s home page is visually very similar to the Complainant’s and thereby the public may believe that it is the Complainant’s website. The Respondent has also posted false allegations concerning the Complainant at the Respondent’s home page, which tarnishes the good reputation of the trade mark SIEMENS.
The Respondent submits that he is the legal owner of the disputed domain name <siemens-ag.com>. According to the Respondent, domain names are the property of the person or institution that first purchases them, and a payment has to be made in order to “own” a domain name.
The Respondent further submits that he has neither made profit nor attempted to do so, by using the Complainant’s trade mark.
The Respondent suspects that the Complainant is more focused on “terrorizing” him than on protecting its trade mark. This is why he has purchased the domain name <siemens-ag.net>. The Respondent submits that if the Complainant really was interested in acquiring all domain names containing its trade marks, it would be a good policy to legally purchase them before someone else or to negotiate under standard terms.
The Respondent offers to sell <siemens-ag.com> for USD 10,000 and
<siemens-ag.net> for USD 3,000.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights to the trade mark SIEMENS which precede the Respondent’s registration of the disputed domain names.
The Panel further finds that the disputed domain names are confusingly similar to the Complainant’s trade mark SIEMENS. The disputed domain names incorporate the Complainant’s trade mark completely. The addition of the term “ag”, the abbreviation of the generic German term “Aktiengesellschaft”, does not imply that the domain names are distinguished from the trade mark SIEMENS with the effect that confusion is avoided. On this point the Panel refers to previous decisions under the Policy, e.g.. the panel’s observations in Sanofi-Aventis, v. US-Meds.com, WIPO Case No. D2004-0809:
“The domain names in dispute are comprised of the Complainant’s trade mark ACOMPLIA preceded or followed by generic words used in the trade such as “buy,” “store,” or “online” or common words used in the medical market such as “pills,” “drug,” “generic” and “pharmacy” and the gTLDs “.com” or “.net.” The Complainant holds a number of valid registrations for the ACOMPLIA trade mark.
The use of the above noted generic terms in conjunction with the Complainant’s trade mark ACOMPLIA does not remove the domain names in dispute from being confusingly similar, as the generic terms lack distinctiveness.”
In conclusion, the Panel finds that the Complainant has proved that the condition under the Policy, paragraph 4(a)(i) is fulfilled with respect to the disputed domain names.
B. Rights or Legitimate Interests
It is generally difficult for a complainant to prove that a respondent does not have any rights to or legitimate interests in a domain name. On the other side it is fairly simple for a respondent to demonstrate it has such rights. Previous decisions under the Policy have found that once a complainant makes out a prima facie case that a respondent lacks rights or legitimate interests, respondent carries the burden of demonstrating rights or legitimate interests in the domain name.
The Respondent has neither documented that it has registered SIEMENS as a trade mark nor has the Respondent documented that he has been granted any rights to use the trade mark SIEMENS.
Further, the Panel finds that the Respondent has not documented that the disputed domain names have been used in a bona fide offering of goods. On the contrary, the Panel finds from the Respondent’s website and the Response that the Respondent knows the Complainant’s trade mark and business, cf Section 6 C below. Based on the foregoing, the Panel concludes that the Respondent has failed to demonstrate that it has rights to or legitimate interests in the disputed domain names pursuant to paragraph 4(c) of the Policy.
The basis for the Panel’s decision is that the Complainant has not granted the Respondent any rights to use its mark, and that the Respondent is in no way affiliated with the Complainant. The Panel finds that the circumstances mentioned and evidenced by the Complainant are sufficient to establish a prima facie showing that the Respondent has no rights to or legitimate interests in the domain names at issue.
As the Panel cannot find any indications of the three circumstances that constitute rights to or legitimate interests in the disputed domain names pursuant to paragraph 4(c) of the Policy or any other circumstances indicating such rights or legitimate interests in the case file, the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain names at issue.
C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, certain circumstances shall be evidence of the registration and use of a domain name in bad faith. These include in sub-paragraph (iv) the fact that the Respondent, by using the domain names at issue, has intentionally attempted to attract, for commercial gain, Internet users to his 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 his website or location or of a product or service on his website or location. The Panel finds it clear that Respondent is using the Complainant’s trade mark SIEMENS to attract Internet users to its website without making it clear that it is not a website of the Complainant or affiliated with or sponsored or endorsed by it.
In particular, the Panel sees the visual image of the Respondent’s website at “www.siemens-ag.com”, which is very similar to that of the Complainant, as an indication of bad faith. Even if the users who access the Respondent’s website may conclude that it is not what they were originally looking for, the Respondent has already succeeded in its purpose of using the Complainant’s mark to attract users for commercial gain, cf the panel’s observations in Red Bull GmbH v. Unasi Management Inc., WIPO Case No. D2005-0304.
The Panel further sees the Respondent’s offer to sell the disputed domain names as an indication of bad faith.
For the various reasons discussed above, the Panel finds that the Respondent has registered and used the domain names in dispute in bad faith.
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 names <siemens-ag.com> and <siemens-ag.net> be transferred to the Complainant.
Dated: January 12, 2007