The Complainant is Siemens AG of Munich, Germany, represented by Müller Fottner Steinecke of Munich, Germany.
The Respondent is Jean Niemann of Florianópolis, Brazil.
The disputed domain name <siemens-ec.com> is registered with The Planet Internet Services Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2009. On February 19, 2009, the Center transmitted by email to The Planet Internet Services Inc., a request for registrar verification in connection with the disputed domain name. On March 4, 2009, The Planet Internet Services Inc., 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” or “UDRP”), 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 March 5, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was March 25, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 3, 2009.
The Center appointed Syed Naqiz Shahabuddin as the sole panelist in this matter on May 13, 2009. 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.
4.1 Founded more than 150 years ago, the Complainant is involved in the areas of Information and Communications, Automation and Control, Power, Transportation, Medicine and Lighting. Headquartered in Berlin and Munich, it is one of the world's largest electrical engineering and electronics company with customers in 190 countries.
4.2 The Complainant trades and offers goods and services under the trademark and/or service mark SIEMENS. It has procured, inter alia, the following trademark registrations:
4.2.1 German trademark No. 2077533 “SIEMENS” in the name of SIEMENS AG, claiming protection for goods and services in international classes 01, 03, 05, 06, 07, 08, 09, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 40, 41, 42 and 44.
4.2.2 German trademark No. 30075283 “SIEMENS” in the name of SIEMENS AG, claiming protection for goods in international class 16.
4.2.3 German trademark No. 39946996 “SIEMENS” in the name of SIEMENS AG, claiming protection for goods in international classes 18, 25 and 28.
4.2.4 International registration No. IR 504324 “SIEMENS” in the name of SIEMENS AG, claiming protection for goods in international classes 06, 07, 08, 09, 10, 11, 12, 14, 16, 17, 20, 21 and 28.
4.2.5 Community trademark No. 4240263 “SIEMENS” in the name of SIEMENS AG, claiming protection for goods and services in classes 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 20, 21, 28, 35, 36, 37, 38, 39, 40, 41 and 42.
4.3 The disputed domain name was registered by the Respondent on January 16, 2009.
4.4 The website corresponding to the disputed domain name is no longer available. However, up until February 17, 2009, an Internet user typing the address www.siemens-ec.com would automatically be directed to the URL “http://w1.siemens.com/mail”, which corresponds to a sub-page of the Complainant's official website. In comparison, an Internet user typing the official address of the Complainant www.siemens.com would automatically be directed to the URL http://w1.siemens.com/entry/cc/en/.
4.5 The e-mail address email@example.com corresponding to the domain name in dispute is used purportedly by “Mr. Markus Schmitt, Head of Operations, Siemens – Information Competence Center” for the purposes of ordering computer material supposedly in the name and on behalf of the Complainant. Mr. Markus Schmitt is said not to be an employee of the Complainant and to have no connection with the Complainant.
The Complainant contends as follows:
5.1 The domain name <siemens-ec.com> is confusingly similar to the Complainant's mark SIEMENS. The disputed domain name differs from the Complainant's mark only to the extent that it contains a hyphen and the letters “ec” after the mark SIEMENS. The letters “ec” could possibly be referring to the “European Community” or the generic terms “electronic commerce”, “electronic components” or “electronic cash”. Given the reputation and goodwill of the SIEMENS mark, the public would automatically recognize the mark SIEMENS, which forms a distinctive feature of the disputed domain name.
5.2 The Respondent has no rights or legitimate interests in respect of the domain name in dispute. In support thereof, the Complainant relies on the following factors:
5.2.1 The Respondent is not connected with the Complainant and has never been one of the Complainant's representatives or employees.
5.2.2 The Respondent has never been licensed or authorised by the Complainant to use the disputed domain name.
5.2.3 The Respondent has not at any time been commonly known by the disputed domain name and does not own a mark for the word SIEMENS.
5.2.4 The Respondent is not using the domain name for a legitimate non-commercial or fair use.
5.3 The domain name was registered and is being used in bad faith. In this regard, the Complainant relies on the following circumstances:
5.3.1 The Respondent's SIEMENS mark is a well known trademark and, therefore, it is inconceivable that the Respondent was unaware of it when it was being registered.
5.3.2 The Respondent intentionally attempted to attract Internet users to the Respondent's website, for commercial gain, by creating a likelihood of confusion with the Complainant's SIEMENS mark.
5.3.3 The Respondent intended to cause damage and/or disrupt the Complainant's business by creating a likelihood of confusion with the Complainant's SIEMENS mark.
The Respondent did not reply to the Complainant's contentions.
In order to succeed in its Complaint, the Complainant is required to establish the following elements set out under paragraph 4(a) of the Policy:
(A) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(B) that the Respondent has no rights or legitimate interest in respect of the domain name; and
(C) that the domain name has been registered and is being used in bad faith.
Based on the evidence adduced by the Complainant, the Panel is satisfied that the Complainant has rights to the SIEMENS mark.
The domain name in dispute wholly incorporates the SIEMENS mark in addition to a hyphen and the letters “ec”. This Panel finds that these additions do not significantly alter the character of the domain name as being one which is confusingly similar to the SIEMENS mark. To the ordinary Internet user, the additional letters “ec” could probably refer to the “European Community” or the generic terms “electronic commerce”, “electronic components” or “electronic cash”. The focus of the Internet user would be on the distinctive SIEMENS mark as opposed to the letters “ec”.
This Panel, therefore, concludes that the Respondent's domain name is confusingly similar to the Complainant's trademark and is satisfied that the first element of paragraph 4(a) of the Policy has been proven by the Complainant.
This Panel accepts the contention that there is no relationship between the Complainant and the Respondent giving rise to any license, permission or other right by which the Respondent could own or use any domain name incorporating the Complainant's mark. This Panel also accepts the contention that the Respondent is not known by the domain name at issue. No evidence to the contrary was submitted by the Respondent.
The fact that the domain name resolved to a subpage of the Complainant's website without the Complainant's consent and the misrepresentation that the Respondent's purported personnel, Markus Schmitt, was an employee of the Complainant, lends support to the Complainant's contention that the Respondent is not using the domain name for a legitimate noncommercial or fair use.
Based on the above circumstances, the Panel could not find any evidence, whether direct or otherwise, which would indicate that the Respondent has rights or legitimate interests to the domain name in issue. The Panel is, therefore, satisfied that the second element of paragraph 4(a) of the Policy has been proven by the Complainant.
The Complainant's beginnings can be traced back by more than 150 years and its products and services are currently represented worldwide. Based on the long standing reputation and widespread presence of the Complainant, the Panel is satisfied with the contention that the Respondent must have been aware of the Complainant's SIEMENS mark prior to registering the domain name in January 2009.
The placement of the SIEMENS mark before the letters “ec”, strongly suggests that the Respondent intended to ride on the Complainant's reputation and goodwill by confusing Internet users as to the source, connection or affiliation of the domain name in issue. It would also appear that the Respondent sought to take advantage of the confusing similarities in order to drive traffic through its website for reasons which are not immediately apparent but clearly disruptive to the Complainant's business.
The fact that the disputed domain name resolved to a sub-page of the Complainant's website located at “www.siemens.com” and the misrepresentation that the Respondent's purported personnel, “Markus Schmitt”, was an employee of the Complainant, suggests that the Respondent intended to damage or disrupt the Complainant's business or had otherwise equipped itself with Internet weaponry to cause some form of disruption or damage to the Complainant's business. It could also suggest that the Respondent intended to derive commercial gain, whether by holding the Complainant at ransom through the threat of holding a confusingly similar domain name or by way of click through payment arrangements. In either case, the circumstance of use of the domain name by the Respondent clearly evidences bad faith on its part.
Accordingly, the Panel is also satisfied that the third element of paragraph 4(a) of the Policy has been proven by the Complainant.
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, <siemens-ec.com> be transferred to the Complainant.
Syed Naqiz Shahabuddin
Dated: May 22, 2009