The Complainant is Atlas Copco Aktiebolag of Nacka, Sweden, represented internally.
The Respondents are Telecom Tech Corp. of Panama City, Panama, and Private Registration (name) of Grand Cayman, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland (the “Respondent”).
The disputed domain names <atlascopc.com> and <atlascorpco.com> (the “Domain Names”) are registered with Bargin Register Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 12, 2010. On March 16, 2010, the Center transmitted by email to Bargin Register Inc. a request for registrar verification in connection with the disputed domain names. After several reminders, on March 30, 2010, Bargin Register Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 30, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 31, 2010. The Center verified that the Complaint together with the amended 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 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 21, 2010.
The Center appointed Pablo A. Palazzi as the sole panelist in this matter on May 3, 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.
The Complainant was incorporated in Sweden in 1873. The Complainant, and its subsidiaries and related entities, are collectively known as “Atlas Copco” and “Atlas Copco Group” and, between them, employ approximately 30,000 people worldwide. The Complainant's business includes the development and manufacture of compressed air equipment, pneumatic tools, construction equipment, mining equipment and assembly systems. The Complainant's products are sold under various brands, including ATLAS COPCO, through a worldwide sales and service network reaching approximately one hundred and fifty countries. Revenues for the Complainant's group of companies in 2007 were approximately 6 billion Euro. The Complainant maintains a website at “www.atlascopco.com”.
In addition, the Complainant is the owner of various registered trademarks, including:
(1) Swedish registered trade mark No. 148653 ATLAS COPCO, registered September 13, 1974; and
(2) United States registered trade mark No. 1526505 ATLAS COPCO, registered February 28, 1989.
The Complainant asserts that the Domain Names are identical or confusingly similar to the ATLAS COPCO trademark. The only difference is the addition of the letter “r” in the domain name <atlascorpco.com> and the omission of the letter “o” in the case of the domain name <atlascopc.com>. Thus Complainant concludes that the Domain Names are examples of “typosquatting”.
The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the Domain Names. The Complainant submits that the Respondent is in no way affiliated or associated with the Complainant or licensed or authorized by the Complainant to use its trademark or to register or use any domain names incorporating the trademark. The Complainant states that the Respondent's use of the the Domain Names and associated websites as landing pages or parking pages. Those pages consist of “sponsored results”, “related searches” or links, including but not limited to sites through which products of the Complainant's competitors are marketed, in connection with a pay-per-click system. The Complainant states that this does not constitute bona fide use of the infringing Domain Names.
The Complainant also asserts that the Domain Names were registered and are being used in bad faith because “typosquatting” is a clear example of registration and use in bad faith; the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant's mark (paragraph 4(b)(iv) of the Policy). The Complainant further argues that the Domain Names are obviously connected with the Complainant and that the use or registration of the Domain Names by anyone other than the Complainant therefore suggests opportunistic bad faith.
The Complainant requests transfer of the Domain Names to the Complainant.
The Respondent did not reply to the Complainant's contentions.
Under paragraph 4(a) of the Policy, the Complainant must prove the following:
(i) the Respondent's Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) the Respondent's Domain Names have been registered and are being used in bad faith.
The Complainant provided evidence that it has registered rights in the trademark ATLAS COPCO both in Sweden and in the United States. The Domain Names <atlascopc.com> and <atlascorpco.com> combine the registered trademark ATLAS COPCO in its entirety with a typographical error: the addition of the letter “r” in the domain name <atlascorpco.com> and the omission of the letter “o” in the case of the domain name <atlascopc.com>. These alterations do not render the Domain Names significantly different from the Complainant's trademark. Such minimal changes to a mark are quintessential “typosquatting” and this practice has long been recognized as a strong ground for a finding of identity or confusing similarity within the meaning of paragraph 4(a)(i) of the Policy (See, EPSON Europe BV for and on behalf of Seiko EPSON Corporation v. Igor S Panin, WIPO Case No. D2009-1503; Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095, and other cases cited therein). Thus the Domain Names are confusingly similar to Complainant's trademark.
The Panel finds that the Complainant, therefore, has fulfilled the requirements of paragraph 4(a)(i) of the Policy.
As the Respondent is in default in this matter, it has not presented any evidence that it has rights or legitimate interests in the Domain Names. The Complainant convincingly denies that Respondent could have any such rights. The Respondent is apparently not commonly known by the expression “Atlas Copco” or anything similar and does not appear to trade under that or any related name. There are, furthermore, no facts or reasons to infer that Respondent has any rights or legitimate interests in the Domain Names.
The consensus view of UDRP panelists concerning the burden of establishing the absence of rights or legitimate interests in respect of the domain name is as follows: “While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP” (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 2.1).
In the present case the Complainant has made a prima facie showing that Respondent has no rights or legitimate interests in respect of the Domain Names and the Respondent has failed to rebut the Complainant's showing or assert any such rights. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed Domain Names.
For these reasons, on the basis of the available evidence, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed Domain Names.
According to paragraph 4(b) of the Policy, the Domain Names have been used and were registered in bad faith if:
“(i) circumstances indicating that Respondent has registered and has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the Domain Name; or
(ii) Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.”
First, the Panel finds that the practice of typosquatting is by itself evidence of bad faith registration (see Research In Motion Limited v. G.H. Wagenaars, WIPO Case No. D2009-0319; InfoSpace.com, Inc. v. Registrar Administrator Lew Blanck, WIPO Case No. D2000-0069; Automobiles Peugeot SA v. Good Domains, Formerly Domains For Sale Inc. WIPO Case No. D2002-0805; Prada S.A. v. Domains For Sale Inc., WIPO Case No. D2002-0512; Société Générale v. Socieite Generale inc., Mr. Don Kings Jr., WIPO Case No. D2005-0998). In addition, the Respondent has registered not one but two domain names which are confusingly similar to the Complainant's trademark. This is further evidence of bad faith.
Second, the Respondent's history of registering and using domain names without any legitimate rights and interests, including the ten (10) previous UDRP decisions made against the Respondent1, is in the view of the Panel, further evidence of bad faith on the part of the Respondent (See Kahn Lucas Lancaster, Inc. v. Marketing Total S.A., WIPO Case No. D2007-1236 and General Electric Company v. Marketing Total S.A., WIPO Case No. D2007-1834).
Third, the Panel acknowledges that the use of privacy registration services is presently a legally acceptable practice and may be for legitimate purposes (HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, WIPO Case No. D2007-0062). The use of a privacy or proxy registration service is not in itself sufficient to establish bad faith use or registration. In this case, however, the Respondent has a well-established history of abusing trademark rights of third parties. Based on the record in this case, the Respondent has an apparent bad faith motive for using a privacy registration service, i.e. to avoid responsibility for his abusive conduct. The Panel finds, therefore, that the Respondent's use of a proxy service is cumulative evidence of the Respondent's bad faith (See, e.g., Canadian Tire Corp. Ltd v. CK Aspen, WIPO Case No. DTV20007-0015; Viceroy Hotels, L.L.C., Kor Cayman Ltd. v. Mr. Syed Hussain, WIPO Case No. D2009-0962 and Google Inc. v. Oneandone Private Registration, WIPO Case No. D2009-1674).
Finally, the Complainant's allegations of bad faith are not contested by the Respondent. The trademark registrations of record confirm the Complainant's allegations that it had long been using its ATLAS COPCO trademark when the Domain Names that are the subject of this Complaint were registered. The Panel finds persuasive the Complainant's allegation that the Respondent must have been aware of the Complainant's rights in its trademark and, further, that the Respondent knowingly infringed the Complainant's trademark when it registered the Domain Names.
The Panel finds that Respondent registered the Domain Names in bad faith.
Under the Policy (paragraph 4(b)(iv)), it is evidence of bad faith that, “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location”.
The Respondent's Domain Names consist of a mere collection of links to other websites. As the Complainant correctly points out, the websites associated with the Domain Names are obviously mere vehicles for generating advertising revenue. By using the Domain Names, the Respondent therefore has intentionally attempted to attract, for commercial gain, Internet users to his websites, by creating a likelihood of confusion with the Complainant's trademark. Policy, paragraph 4 (b)(iv) is therefore satisfied (Joe David Graedon v. Modern Limited - Cayman Web Development, WIPO Case No. D2003-0640; Research In Motion Limited v. G.H. Wagenaars, WIPO Case No. D2009-0319).
Accordingly, the Panel finds that the Respondent is using the Domain Names in bad faith.
In light of the above, the Panel finds that the Respondent has registered and is using the Domain Names in bad faith in accordance with paragraph 4(b)(iv) of the Policy.
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 <atlascopc.com> and <atlascorpco.com> be transferred to the Complainant.
Pablo A. Palazzi
Dated: May 13, 2010
1 A search in the WIPO database of WIPO Cases and WIPO Panel Decisions shows that Respondent was a party in eleven cases and he lost in ten. These cases are: SNCF – Société Nationale des Chemins de Fer Français v. Private Registration – BMON/ Telecom Tech Corp., WIPO Case No. D2010-0156, Kiss Nail Products, Inc. v. Telecom Tech Corp., WIPO Case No. D2009-1308, BHP Billiton Innovation Pty Ltd v. Telecom Tech Corp., WIPO Case No. D2008-1911, Lonely Planet Publications Pty Ltd. v. Telecom Tech Corp., Administrator Administrator, WIPO Case No. D2008-1016, Fundación Santa María Ediciones SM v. Telecom Tech Corp, WIPO Case No. D2008-0961, Microgaming Software Systems Limited v. Telecom Tech Corp., WIPO Case No. D2008-0894, AXA SA v. Telecom Tech Corp., WIPO Case No. D2008-0764, Berlitz Investment Corporation v. Telecom Tech Corp., WIPO Case No. D2008-0267 and FD Management, Inc. v. Telecom Tech Corp., WIPO Case No. D2008-0235.