WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Deutsche Telekom AG v. Domain Investments LLC/Marlon Phillips
Case No. D2007-0919
1. The Parties
The Complainant is Deutsche Telekom AG, Bonn, Germany, represented by Lovells, Germany.
The Respondent is Domain Investments LLC/Marlon Phillips, Florida, of United States of America.
2. The Domain Names and Registrars
The disputed domain names <t-mobilepictres.com>, <tmobilepitcures.com> and <t-mobilr.com> are registered with Domains4u.ca Inc., Ace of Domains, Inc. and Your Domain King, respectively.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 20, 2007. On June 22, 2007, the Center transmitted by email to Domains4u.ca Inc., Ace of Domains, Inc. and Your Domain King a request for registrar verification in connection with the domain names at issue. Domains4u.ca Inc., on June 25, 2007, transmitted its response to the Center confirming that the Respondent was listed as registrant and providing contact details. Ace of Domains, Inc. on June 25, 2007, transmitted its response to the Center confirming that the Respondent was listed as registrant and providing contact details. Your Domain King on July 30, 2007, transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 10, 2007. The Center verified that the Complaint together with the amendment 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 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on to the Complaint on September 11, 2007. The Panel is satisfied that the Center took all reasonable steps to notify the Complaint to the Respondent and that it has discharged its responsibility.
The Center appointed Fleur Hinton as the sole panelist in this matter on October 10, 2007. 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 6, 2007, the Complainant requested the inclusion of further domain names in the Complaint. On September 10, 2007, the Center responded that it would be for the Panel to determine whether it would accept the addition of new domain names. On September 11, 2007, the Center received an email message from the Respondent stating that there was “no message or attachment” in a message from the Center, regarding the email communication of September 10, 2007. The Panel denies the Complainant’s request to add further domain names.
4. Factual Background
The Complainant is Deutsche Telekom AG whose head office is in Bonn. It is Europe’s largest telecommunications company and has a worldwide reputation. The Respondent is Domain Investments LLC/ Marlon Phillips. The LLC appears to be controlled by Mr. Phillips and the Complainant has nominated both as effectively being the owner of the disputed domain names.
The Complainant has a subsidiary called T-Mobile International AG & Co. KG. It is one of Deutsche Telekom’s three strategic business units and the one through which the Complainant’s mobile communications sector is conducted. The Complainant has a considerable number of trademarks around the world incorporating either T-MOBILE or T-MOBIL. The Complainant and its subsidiary T-Mobile USA have registered and use at least the following domain names: <t-mobile.com>, <tmobile.com>, <t-mobile.net>, <tmobile.net>, <t-mobilepictures.com> and <telekom.com>.
The Respondent has registered through three different domain name registrars the domain names <tmobilepitcures.com>, <t-mobilepictres.com> and <t-mobilr.com>.
When the Complainant first became aware of the existence of the disputed domain name <t-mobilepictres.com> in January 2007, it sent a cease and desist letter to Mr. Phillips of Domain Investments and there was subsequent correspondence in which Mr. Phillips agreed to the transfer of the disputed domain name to the Complainant. However, after having provided the Complainant with an authorization code and confirming that the domain name had been unlocked, the Respondent failed to approve the transfer and further attempts to contact the Respondent by email failed, the emails being returned as being undeliverable.
5. Parties’ Contentions
The Complainant claims that it has a very substantial reputation in trademarks and that the disputed domain names are examples of typo squatting and are confusingly similar to its trademarks, that the Respondent has no legitimate interest in any of these domain names and that the Respondent has registered them and is using them in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has shown that it has a very substantial reputation in the trademark T-MOBILE. It also has a number of national and international registrations covering T-MOBILE. Prima facie, it may appear that T-MOBILE is not a distinctive trademark in relation to goods and services connected with mobile telephones such as would give exclusive rights to any one trader. However, in this instance, in view of the fact that the Complainant has been able to obtain international registrations in countries including those where distinctiveness is a criterion for registration, the Panel finds that the Complainant does have the right to this exclusivity.
The Panel further finds that each of the disputed domain names is confusingly similar to the Complainant’s widely known trademark T-MOBILE, incorporating “T-Mobile” or a typographical error of it.
B. Rights or Legitimate Interests
The Complainant always has the initial onus on it to establish a prima facie case that the Respondent lacks rights or legitimate interests in disputed domain names. In this instance the Panel is of the view that the Complainant has established its case in respect of the disputed domain names. The Complainant’s rights to T-MOBILE come from its trademark registrations.
The Respondent is aware of these rights and initially indicated willingness to arrange for the transfer of at least one of these domain names to the Complainant. There is nothing to indicate that the Respondent has any rights or legitimate interests in the disputed names and the Respondent has not taken the opportunity offered by these proceedings to submit any argument to the contrary.
C. Registered and Used in Bad Faith
The Complainant alleges that, because the Complainant’s T-MOBILE trademark is so well known, the Respondent’s commencement of its use must be in bad faith since anyone involved in the mobile telecommunications industry must know of it.
The Respondent was contacted by the Complainant in January 2007 in relation to its registration of the disputed domain name <t-mobilepictres.com>. After it refused to proceed with the transfer of that name to the Complainant as it initially seemed willing to do, it went on to register the other two disputed domain names, <t-mobilr.com> and <tmobilepitcures.com>. All of these websites presently resolve to landing pages. Under these circumstances the Panel finds that the Respondent registered and is using the disputed domain names 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, <t-mobilr.com>, <t-mobilepictres.com> and <tmobilepitcures.com> be transferred to the Complainant.
Dated: October 29, 2007