WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
C. Crane Company, Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT
Case No. D2008-0621
1. The Parties
The Complainant is C. Crane Company, Inc. of United States of America, represented by Robbie M. Crossley, United States of America.
The Respondent is Privacy Ltd. Disclosed Agent for YOLAPT, of United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <ccranecompany.com> (the “Domain Name”) is registered with Fabulous.com Pty Limited (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2008. On April 22, 2008, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On April 23, 2008, the Registrar 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 May 9, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 29, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 30, 2008.
The Center appointed William P. Knight as the sole panelist in this matter on June 12, 2008. 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 Domain Name dates from October 12, 2004.
The Complainant is a company based in Fortuna, California which sells radios and radio accessories, recording devices, flashlights, LED light bulbs, speakers, earphones and other products, as can be seen at the Complainant’s own website “ccrane.com”, including products which it calls the “CCRadio Plus” and the “Versacorder”. The Complainant says that it has been commonly known by the name C. Crane Company for almost 30 years selling these products.
Nothing is known of the Respondent other than that it is a company based in the Isle of Man, with no connection whatsoever to the Complainant nor to the name “CCrane” or any variant of that name.
The Domain Name is being used solely to resolve to a page providing links to suppliers of the same sorts of products as those of the Complainant, and also provides links to “Ccradioplus”, “Versacorder” and “Ccranecompany Catalog”, none of which link to the Complainant.
5. Parties’ Contentions
In accordance with paragraph 4(a) of the Policy, the Complainant asserts:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s unregistered trademark, namely C. CRANE COMPANY; and
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
In respect of (i), the effect of the Complaint is that the Complainant asserts that it has acquired substantial reputation in the name “C. Crane Company” by virtue of trading under that name for over 30 years. Plainly, the Domain Name is identical to the Complainant’s asserted trademark.
In respect of (ii), the Complainant asserts that there is nothing to indicate that the Respondent has used the word “Ccrane” comprising the Domain Name in any legitimate fashion and is now doing so only for the purpose of making an illegitimate commercial gain by misleading and diverting consumers through the use of the Complainant’s name.
In support of (iii), the Complainant notes that the only apparent purpose in registering or acquiring the Domain Name was to attempt to attract, for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site and products on the Respondent’s web site.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if the Respondent had chosen to take advantage of the opportunities afforded to it, expressly, by paragraph 4(c) of the Policy.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent.
A. Identical or Confusingly Similar
The Complainant bases its Complaint upon an unregistered trademark. It is well established that paragraph 4(a)(i) of the Policy is not limited in its application to registered trademarks; see Imperial College v. Christophe Dessimoz, WIPO Case No. D2004-0322 among others. The Complainant must establish that it has acquired a reputation and goodwill in its name through use in order to claim trademark rights in it, for the purposes of the application of the Policy.
Whilst the Complainant has not provided any evidence in its Complaint other than that referred to above, bearing in mind that the Complainant’s asserted trademark does not bear any direct reference to the character or quality of the goods it sells, the undisputed assertion of 30 years trading in these goods, in the Panel’s view, establishes that the name “C. Crane Company” is a trademark identifying the Complainant uniquely in the field of radios and radio accessories, recording devices, flashlights, LED light bulbs, speakers, earphones and related products.
In a paradoxical way, the conclusion that the Respondent deliberately copied the distinctive name of the Complainant, to which the Panel also comes, as it inevitably must on the evidence, serves only to reinforce that the reputation of the Complainant extends even to the Isle of Man, or is in the age of the Internet at least readily discernable from that location.
There is no doubt as to the similarity of the Domain Name with Complainant’s common law trademark C. CRANE COMPANY.
B. Rights or Legitimate Interests
The Complainant’s undisputed assertion is that its use of its trademark commenced over thirty years ago. The Complainant, by virtue of its Complaint, denies any connection with, or license of any kind to, the Respondent.
In the absence of any explanation from the Respondent, it is impossible to know how the Respondent happened upon so similar a word, or how it could have any legitimate interest in it. However, the fact that the Domain Name was registered in 2004 and the Respondent has populated its web page with links to web sites of suppliers of products of the same kind as those supplied by the Complainant, and even uses on its web site the words “Ccradioplus”, “Versacorder” and “Ccranecompany Catalog”, which appear to be uniquely connected with the Complainant (although none of those links resolve to the Complainant), appears to lead inevitably to the conclusion that the Respondent was in all likelihood fully aware of the Complainant’s name and business before registering the Domain Name.
The Panel also notes that the Respondent has been the subject of two prior determinations under the Policy, Facebook Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT, WIPO Case No. D2007-1193 and Ladbrokes Betting & Gaming Ltd. v. Privacy Ltd. Disclosed Agent for YOLAPT, WIPO Case No. D2007-1702, in neither of which is there any indication that the Respondent has any history of any connection with the name “Ccrane” or any similar name nor any interest in the supply of radios and radio accessories, recording devices, flashlights, LED light bulbs, speakers, earphones and related products, but is merely an acquirer and seller of domain names.
The Panel, therefore, agrees with the Complainant’s submission that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
So far as concerns the first limb of this requirement, registration in bad faith, for reasons explained above, the Panel concludes that Respondent registered the Domain Name in circumstances where it must have been aware of the pre-existing rights of the Complainant and, having had ample opportunity to explain its reasons for choice of the Domain Name and its intention to make some legitimate use of the Domain Name, has not availed itself of the opportunity to do so. As a consequence, the Panel finds that the Respondent registered the Domain Name in bad faith, in the sense required by the Policy.
Furthermore, paragraph 4(b)(iv) of the Policy gives an example of registration and use in bad faith, namely redirection of Internet users away from the Complainant for commercial gain. The Respondent’s sole use of the Domain Name has been to provide links to third parties’ websites operating in the Complainant’s field of business. Redirection to a competitor’s website is a circumstance coming within paragraph 4(b)(iv) of the Policy as an indication of registration and use in bad faith.
In the circumstances, the panel accepts the submission of the Complainant as to registration and use of the Domain Name in bad faith.
In the light of the findings in paragraph 6 above, the Panel concludes that:
- the Domain Name is confusingly similar to the trademark C. CRANE COMPANY belonging to the Complainant; and
- the Respondent has no rights or legitimate interests in the Domain Name; and
- the Domain Name has been registered and is being used in bad faith.
Accordingly, the Panel orders in accordance with paragraphs 4(i) of the Policy and 15 of the Rules that the Domain Name <ccranecompany.com> be transferred to the Complainant.
William P. Knight
Dated: June 26, 2008