WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Philips Electronics N.V. v. Carlos Solivera
Case No. D2011-0988
1. The Parties
The Complainant is Koninklijke Philips Electronics N.V. of Eidhoven, Netherlands, represented by J.J.E.C.G. Vandekerckhove, Netherlands.
The Respondent is Carlos Solivera of Brooklyn, New York, United States of America.
2. The Domain Name and Registrar
The disputed domain name <buyphilips.com> (the “Disputed Domain Name”) is registered with UdomainName.com LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 10, 2011. On June 10, 2011, the Center transmitted by email to UdomainName.com LLC, a request for registrar verification in connection with the disputed domain name. On June 16, 2011, Moniker.com for UdomainName.com LLC. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the disputed domain name, which differed from the named Respondent and contact information in the Complaint.
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 June 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 11, 2011.
The Center appointed William P. Knight as the sole panelist in this matter on July 27, 2011. 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 was registered on December 11, 2007.
The Complainant is an internationally well-known technology company, mainly concerned with consumer lifestyle, healthcare and lighting products, which with its predecessors in business, has been in continuous operation since 1891. The Complainant is a Dutch company, listed on the New York Stock Exchange. Its principal trademark is PHILIPS, which is the subject of numerous trademark registrations around the world.
The Disputed Domain Name is being used in a way that appears to be a genuine website of the Complainant, except that each page of the website includes links to websites of various other suppliers of a wide range of products and services, including products competing with those of the Complainant.
5. Parties’ Contentions
The Complainant asserts, inter alia, as follows:
(i) that the Disputed Domain Name is confusingly similar to the Complainant’s name and its registered trade marks;
(ii) that the Respondent has neither conceivable rights nor any legitimate interests in respect of the Disputed Domain Name; and
(iii) that the Disputed Domain Name has been registered and is being used in bad faith.
The Complainant’s claim in respect of (i) is supported, in short, by the obvious similarity between the dominant element in the Disputed Domain Name, “philips”, with the mere addition of a prefix, the generic word “buy”. The Complainant cites Altria Group, Inc. v Steven Company, WIPO Case No. D2010-1762 and Zino Davidoff SA v SEOTools4, WIPO Case No. D2011-0104.
The Complainant’s claim in respect of (ii) is supported by the fact that the Complainant asserts that its name and mark PHILIPS is a famous mark worldwide and that the Complainant has given no permission to the Respondent to register or use the Disputed Domain Name; the Respondent is not commonly known by nor has he demonstrated other rights in the name “Philips”; and there is no other legitimate, non-commercial or fair use being made of the Disputed Domain Name. The website at the Disputed Domain Name does not offer Philips products for sale, although it refers to them; the only apparent purpose and use of the Disputed Domain Name is to redirect Internet users to the websites of suppliers of various products, including products competing with those of the Complainant, and services.
In support of (iii), the Complainant asserts that, whilst the Disputed Domain Name was first registered on December 11, 2007, between the time that the Complainant first became aware of the Disputed Domain Name on or about February 3, 2011, and wrote to the then registrant an email objecting to it, a check of the WhoIs information in respect of the Disputed Domain Name on April 14, 2011, showed registration of the Disputed Domain Name changed, it appearing that the Disputed Domain Name was transferred to the Respondent. In those circumstances, such a transfer may be regarded as a new registration; the Complainant relies upon WIPO Overview of Panel Views on Selected UDRP Questions, Second Edition, paragraph 3.7. The Complainant argues that it would be clear both from the Complainant’s worldwide reputation and the content of the website to which the Disputed Domain Name is directed, that the Respondent was fully aware of the Complainant and its reputation at the time he acquired the Disputed Domain Name. In such circumstances, the Complainant argues, the registration and present use of the Disputed Domain Name referred to above must be regarded and registration and use in bad faith, in that it involves using the Disputed Domain Name in order intentionally to attempt to attract, for commercial gain, Internet users to other on-line locations, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website in the terms of Paragraph 4(b)(iv) of the UDRP.
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.
The Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent, failing to respond, has not explained either the registration or use of the Domain Name.
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 that is found by the Panel to be credible, and not contradicted by the Respondent.
A. Identical or Confusingly Similar
It is clear to the Panel that the Complainant is the owner of the PHILIPS trademark.
The mere addition of the generic word “buy” before the Complainant’s trademark is not sufficient to distinguish the Disputed Domain Name, as the dominant impression given by the Disputed Domain Name remains the Complainant’s trademark.
The Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark PHILIPS and, accordingly, paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
The Complainant’s name and mark is world famous. The Respondent was entitled to demonstrate some right or legitimate interest with respect to the Disputed Domain Name, and paragraph 4(c) of the Policy gives good examples of how the Respondent could have done so. The Respondent has given no such explanation.
In fact, the Panel finds that the intent of the website at the Disputed Domain Name is to mislead or deceive Internet users to believe hat the website is a genuine website of the Complainant and then to divert them either to websites of other suppliers, sometimes of competing products, or simply to Google Ads, from which it may be assumed that the Respondent would receive pay-per-click revenues.
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
Paragraph 4(a)(iii) of the Policy directs that the Complainant must establish that the Disputed Domain Name has been registered and is being used in bad faith.
So far as concerns the first limb of this requirement, registration in bad faith, the Panel notes the following:
(a) the Respondent registered the Disputed Domain Name in circumstances where it must have been aware of the pre-existing rights of the Complainant;
(b) there is virtually no commercial use which could be made of the Disputed Domain Name that would not infringe the legal rights of the Complainant and be misleading and deceptive upon the public; and
(c) if the Respondent had any intention to make some legitimate use of the Disputed Domain Name, it has had opportunity either to do so or otherwise to explain its conduct, but has done neither.
Therefore the Panel concludes that the Respondent registered the Disputed Domain Name with bad faith, in the sense required by the Policy.
Turning now to the second limb of this requirement, “use in bad faith”:
(a) the Complainant’s trademark has a strong reputation and is widely known, as evidenced by its registration as a trademark and use in many countries;
(b) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the Disputed Domain Name, and its present use is plainly intended to attract Internet users interested in the Complainant’s product to various other suppliers of other products and services, or Google Ads, for the purpose of gaining pay-per-click revenue;
(c) taking into account all of the above, the Panel finds that it is not possible to conceive of any plausible actual or contemplated active use of the Disputed Domain Name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.
The Panel therefore concludes that the Respondent has registered and is using the Disputed Domain Name in bad faith.
In the light of the findings in paragraph 6 above, the Panel concludes that:
- the Disputed Domain name <buyphilips.com> is confusingly similar to the trademark PHILIPS belonging to the Complainant; and
- the Respondent has no rights or legitimate interests in the Disputed Domain Name; and
- the Disputed 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 Disputed Domain Name <buyphilips.com> be transferred to the Complainant.
William P. Knight
Dated: August 1, 2011