The Complainant is Osram GmbH of Munich, Germany, represented by Patent und Rechtsanwälte Hofstetter, Schurack & Skora of Germany.
The Respondent is limingshu of Beijing, the People's Republic of China.
The disputed domain name <aosram.com> is registered with Beijing Innovative Linkage Technology Ltd. dba dns.com.cn.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2010. On January 19, 2010, the Center transmitted by email to Beijing Innovative Linkage Technology Ltd. dba dns.com.cn a request for registrar verification in connection with the disputed domain name. On January 21, 2010, Beijing Innovative Linkage Technology Ltd. dba dns.com.cn transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Complaint was submitted in English. Pursuant to Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise. According to information from the concerned Registrar, the language of the registration agreement for the disputed domain name is Chinese. On January 21, 2010, the Center transmitted an email to the parties in both Chinese and English with respect to the language of proceedings. On January 22, 2010, the Complainant submitted a request that English be the language of proceedings, to which the Respondent has not objected. Given the provided submissions and circumstances of this case, the Center decided to accept the Complaint filed in English. Having provided both parties with an opportunity to comment, the Panel chooses at its discretion to write the decision in English.
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 January 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 16, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 17, 2010.
The Center appointed Linda Chang as the sole panelist in this matter on February 24, 2010. 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.
Due to special circumstances, the Panel required an extension until March 19, 2010 to deliver the decision. The Center duly notified the parties of the new decision due date on March 9, 2010.
The Complainant is one of the two largest lighting manufacturing companies in the world, headquartered in Munich, Germany, and is a member of the OSRAM group of companies which was founded in 1919. It employs over 38,000 people and supplies customers in about 150 countries. It manufactures at 49 sites in 19 countries. The Complainant is responsible for the trademarks and domain names of the OSRAM group.
The Respondent registered the disputed domain name <aosram.com> on March 16, 2009.
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant's trademark to which the Complainant has rights. The Complainant has registered more than 500 OSRAM trademarks and service marks in over 150 countries and regions. The following are protected in China:
- International Trademark No. 567595, 1991
- International Trademark No. 579977, 1992
- International Trademark No. 645180, 1995
- International Trademark No. 645182, 1995
- International Trademark No. 666039, 1996
- International Trademark No. 694381, 1995
The Complainant contends that due to its extensive international use of its OSRAM trademark, the trademark has become internationally well-known. The Complainant contends that in previous WIPO cases, the panels have confirmed that the name Osram is a distinctive identifier of the Complainant and its products.
The Complainant contends that “OSRAM” plus a single additional letter, “a”, in the disputed domain name could be the short version of “a osram”, “a osram product”, “a product of osram” or “class a osram”, referring to the quality the Complainant's products.
The Complainant contends that the Respondent is not the holder of a trademark OSRAM or any similar trademark; it does not use the trademark OSRAM and the disputed domain name in connection with a bona fide offering of goods or services, and the Respondent is not an authorized dealer, distributor or licensor of the Complainant and has never contacted the Complainant in the matter of cooperation. The Complainant also contends that the Respondent is not making a legitimate non-commercial or fair use of the disputed domain name.
The Complainant contends that OSRAM GmbH is a well-known lighting manufacturer worldwide. The Complainant contends that the disputed domain name directs the Internet user to “http://shop33586563.taobao.com/”, where Aosilang Lighting sells competing lighting products and that the Respondent uses the disputed domain name to attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's trademark OSRAM, and that Internet users could be misled and might assume that the website connected with the disputed domain name is at least sponsored by the Complainant.
The Complainant contends that the Respondent has chosen the disputed domain name to exploit the reputation of the Complainant's trademark and company name in China.
The Complainant also contends that the Respondent is not using the disputed domain name for personal non-commercial interests. The Respondent has not attempted to make any bona fide use of the disputed domain name.
The Complainant also contends that the almost identical nature of the Chinese characters 奥司郎 (for Aosilang) and欧司郎 (for OSRAM) strongly suggests that the Respondent intends to exploit the Complainant's reputation.
The Respondent did not reply to the Complainant's contentions.
Paragraph 4(a) of the Policy requires the Complainant to prove all of the following in order for its contentions to be supported in the proceedings:
(a) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(b) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(c) the disputed domain name has been registered and is being used in bad faith.
The Complainant is the registered owner of the trademark OSRAM in various jurisdictions. Compared to the trademark name, the disputed domain name <aosram.com> completely reproduces the trademark with the only difference being the mere addition of the letter “a” before “osram”. Additionally, and noting the Respondent's location, in a country such as China, most of the population does not know the English language (or Latin letter) marks very well. When they look for the products of a western brand on Internet, they tend to guess the spelling of the brand name by its pronunciation. In the present case, “ao” in the Chinese language phonetic representation system has the same sound as “o” in “osram”. This can be very misleading to Chinese Internet visitors who are looking for information about OSRAM branded products.
The Panel holds that the disputed domain name is confusingly similar to the Complainant's trademark and the Complainant has met the requirements of paragraph 4(a)(i) of the Policy.
The Complainant has made a prima facie showing of the Respondent's lack of rights or legitimate interest in the disputed domain name. There is nothing in the record to suggest the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services, to suggest that it has been commonly known by the disputed domain name, or to suggest that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. Therefore, the burden shifts to the Respondent to prove otherwise. However, the Respondent has not responded to the Complainant's claims.
The Panel can only make its decision based on the information and evidence submitted before it and given the circumstances believes that the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii) of the Policy.
Information on the record indicates that the disputed domain name is linked to webpages used to sell lighting products for commercial gain. Given the similarity between the disputed domain name and the trademark name, and the lack of any record suggesting the Respondent's rights or legitimate interests in the disputed domain name, it is not unreasonable to believe that the Respondent registered and used the disputed domain name in an attempt to attract Internet users, for commercial gain, to its own website or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent's website. This falls directly under paragraph 4(b)(iv) regarding the Respondent's bad faith in registering and using the disputed domain name.
The Panel is satisfied that the Complaint has met the requirements of paragraph 4(a)(iii)
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 <aosram.com> be transferred to the Complainant.
Dated: March 19, 2010