WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Trader Corporation v. John Senick
Case No. D2007-1555
1. The Parties
The Complainant is Trader Corporation, Québec, Canada, represented by Lang Michener LLP, Canada.
The Respondent is John Senick, New Jersey, United States of America.
2. The Domain Name and Registrar
The Disputed Domain Name <tradercorporations.net> is registered with TierraNet d/b/a DomainDiscover.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2007. On October 22, 2007, the Center transmitted by email to TierraNet d/b/a DomainDiscover a request for registrar verification in connection with the domain name at issue. On October 22, 2007, TierraNet d/b/a DomainDiscover transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 October 26, 2007. In accordance with the Rules, Paragraph 5(a), the due date for Response was November 15, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 16, 2007.
The Center appointed Alistair Payne as the sole panelist in this matter on November 22, 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.
4. Factual Background
The Complainant is a large Canadian company operating a publishing business that covers four main product areas: automotive, real estate, general merchandise and employment. The Complainant also operates part of its business in the United States. The Complainant holds various trademark registrations for TRADER since as early as 1992, and is the holder of two pending applications for TRADER CORPORATION in Canada. These applications were filed on February 19, 2007 before the Respondent registered the Disputed Domain Name on September 24, 2007. The Complainant has also been operating a Canadian web based business under the name TRADER CORPORATION since early June 2006.
The Complainant is seeking the transfer of the Disputed Domain Name.
5. Parties’ Contentions
The Complainant contends that the Disputed Domain name is identical to the TRADER CORPORATION trademark in which is has unregistered common law rights and is confusingly similar to the TRADER trademark in which it holds numerous trademark registrations.
The Complainant alleges that the Respondent has no rights or legitimate interests in the Disputed Domain Name and has not shown any demonstrable preparations to use the Disputed Domain Name for legitimate purposes. The Complainant also contends that the Respondent’s conduct creates a likelihood of confusion with the services the Complainant offers on its website and that the Disputed Domain Name is being used to confuse Internet users as to the source, sponsorship or affiliation of <tradercorporations.net>. Finally, the Complainant asserts that the Respondent registered and used the Disputed Domain Name in bad faith. The Complainant points to the many similarities between the presentation of the website at “www.tradercorporations.net” and the Complainant’s own website at “www.tradercorporation.com”. The Complainant contends that these similarities are sufficient to infer that the Respondent had knowledge of the Complainant when the Disputed Domain Name was registered and the resulting actions was taken in a deliberate attempt at passing-off. Furthermore, the website at “tradercorporations.net” is maintained in order to confuse Internet users and re-direct Internet traffic to the Disputed Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
If the Complainant is to succeed, it must prove each of the three elements referred to in Paragraph 4(a) of the Policy, namely that:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in Paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Panel accepts the Complainant’s evidence of use of the trademark TRADER CORPORATION since 2006. The Panel understands that during this time the Complainant has built up a reputation in its web business under the mark. As a result, the Panel is satisfied that the Complainant has unregistered common law rights in the trademark TRADER CORPORATION. The inclusion of the plural form of “corporation” in the Disputed Domain Name would not, in the Panel’s view, eliminate confusion with the Complainant’s trademark. See Trader Corporation v. Daryl Erdmann, WIPO Case No. D2007-0839. The Panel is therefore, satisfied that the Disputed Domain Name is confusingly similar to the unregistered trademark TRADER CORPORATION. Equally, the Panel accepts that the Disputed Domain Name is confusingly similar to the Complainant’s registered trademark TRADER.
Therefore, the Complainant has satisfied Paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
As already noted, the Panel is satisfied that the Complainant has several registered trademark rights for TRADER and also has common law rights in the trade name TRADER CORPORATION.
The Complainant must establish a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Panel accepts the Complainant’s evidence that, at the time that this Complaint was made, the Respondent’s website at “tradercorporations.net” displayed a presentation that was almost an exact copy of the Complainant’s website. The Respondent is not commonly known by the name TRADER CORPORATION and the Complainant has not licensed or authorized the Respondent to use this name. Overall the Respondent’s use of the Disputed Domain Name in conjunction with a blatant copy of the Complainant’s web page points to a likely passing-off of the Complainant’s rights. Accordingly, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
The Respondent has not responded to the Complaint in this case. The Respondent, has not, therefore, provided the Panel with any evidence of demonstrable preparations to use the Disputed Domain Name for a legitimate purpose. Neither has the Respondent provided the Panel with any evidence that it has rights in the name TRADER CORPORATION. It would appear that the Respondent is attempting to mislead Internet users by reproducing the Complainant’s website in order to confuse the Complainant’s customers and Internet users. This action does not constitute a legitimate use of the Disputed Domain Name. The “Business Protection Program” service offered at the Disputed Domain Name is, at best, suspect, and without evidence to the contrary or confirmation that this service is genuine there is insufficient proof of a legitimate use of <tradercorporations.net>.
Based on the above analysis the Panel is satisfied that the Respondent has not rebutted the Complainant’s prima facie case that he has no rights or a legitimate interests in the Disputed Domain Name. Therefore, the Complainant has satisfied Paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Based on the finding that the Respondent has no right or legitimate interest in the Disputed Domain Name and based on the fact that he copied the Complainant’s website, the Panel infers that the Respondent registered <tradercorporations.net> in bad faith. These actions disrupt the Complainant’s business, and clearly confused Internet users who enquired the Complainant about the services offered at Disputed Domain Name. As the Respondent’s website at “www.tradercorporations.net” was practically identical to the Complainant’s English language website, there is a very strong inference that the Respondent was attempting to gain a commercial advantage by creating a likelihood of confusion amongst the Complainant’s customers as to the source, sponsorship, affiliation or endorsement of the Disputed Domain Name. Under Paragraph 4(b)(iv) of the Policy this is evidence of bad faith use of the Disputed Domain Name.
For all these reasons the Panel is satisfied that the Disputed Domain Name was registered and used in bad faith. As such, Paragraph 4(a)(iii) of the Policy is satisfied.
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 <tradercorporations.net>, be transferred to the Complainant.
Dated: December 7, 2007