WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Clearwire Communications LLC v. Yvan Edwards
Case No. D2010-1440
1. The Parties
The Complainant is Clearwire Communications LLC, Kirkland, Washington, United States of America.
The Respondent is Yvan Edwards, Stockbridge, Georgia, United States of America.
2. The Domain Name and Registrar
The disputed domain name <clearwire4gmobile.com> is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2010. On August 26, 2010, the Center transmitted by email to Tucows, Inc. a request for registrar verification in connection with the disputed domain name. On the same date, Tucows 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 August 30, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 29, 2010.
The Center appointed M. Scott Donahey as the sole panelist in this matter on October 11, 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.
4. Factual Background
Complainant is the owner of a family of marks incorporating the mark CLEAR, including registered marks for CLEARWIRE. The earliest registration of the CLEARWIRE mark dates from June 28, 2005. Complaint, Annex C. As part of a multiyear build out of the network, Complainant’s CLEARWIRE services will soon be available in major markets across the United States. Among those services are fourth generation (“4G” mobile telephone service, wi-fi, high speed Internet, and other related communications services. Complainant’s investors include Intel Capital, Comcast, Google, and Sprint among others. Actual use of the CLEARWIRE mark began in 2008. Complainant has spent a considerable amount of money in the advertising and promotion of the CLEARWIRE marks, and as a result Complainant’s products and services are well known on the Internet. Complaint, Annex D. Complainant has been known in the Internet field under the CLEARWIRE mark and trade name since at least as early as 2004. In addition to advertising and promotion of its marks, Complainant also has been diligent in the protection of the marks. Complainant alleges that Respondent is not authorized to use the mark and that Respondent has not done so other than in association with Complainant’s marks, products, and services.
Respondent registered the domain name at issue July 14, 2010. Complaint, Annex A. Respondent uses the domain name at issue to resolve to a web site featuring Complainant’s distinctive logo, offering Complainant’s products and services for sale, instructing users to call for products and services, and including a phone number that does not belong to Complainant. Complaint, Annex E.
5. Parties’ Contentions
Complainant contends that the domain name at issue is confusingly similar to Complainant’s marks that Respondent has no rights or legitimate interests in respect of the domain name, and that Respondent has registered and is using the domain name at issue in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
2) that the respondent has no legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The domain name at issue consists of Complainant’s CLEARWIRE mark and the addition of other words or phrases descriptive of one of the services offered by Complainant as well as elements of Complainant’s marks. The addition in a domain name of words or phrases descriptive of the goods or services with which the mark is used to the mark itself constitutes confusing similarity. Forte (UK) Limited v.Eugenio Ceschel, WIPO Case No. D2000-0283 (<fortehotels.com); The Chase Manhattan Corporation v. Jehovah Technologies Pte Ltd, WIPO Case No. D2000-0388 (<chasemanhattancorp.com). Accordingly, the Panel finds that the domain name at issue is confusingly similar to service marks in which Complainant has rights.
B. Rights or Legitimate Interests
The consensus view of WIPO panelists concerning the burden of establishing no 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 an initial 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.
In the present case the Complainant alleges that Respondent has no rights or legitimate interests in respect of the domain name and Respondent has failed to assert any such rights. Accordingly, and in view of the Panel’s findings below, the Panel finds that Respondent has no rights or legitimate interests.
C. Registered and Used in Bad Faith
Respondent is using the mark at issue to resolve to a web site at which Complainant’s products and services are offered for sale, on which Complainant’s investors’ logos are featured, and on which Complainant’s logo and marks are prominently displayed such that a user would believe that he was on a web site sanctioned by Complainant. The web site lists a telephone number to call that is not a number belonging to Complainant. This constitutes bad faith registration and use. YAHOO! INC. v. David Murray, WIPO Case No. D2001-1319. Accordingly the Panel finds that Respondent has registered and is using the domain name at issue in bad faith.
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, <clearwire4gmobile> be transferred to the Complainant.
M. Scott Donahey
Dated: October 13, 2010