World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Megamedia Limited v. Neslihan Atillaoglu

Case No. DCO2011-0013

1. The Parties

The Complainant is Megamedia Limited of Hong Kong, SAR of China, represented by Focal PLLC, United States of America.

The Respondent is Neslihan Atillaoglu of Noord Brabant, Netherlands.

2. The Domain Name and Registrar

The disputed domain name <megaupload.co> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2011. On February 14, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On February 14, 2011, GoDaddy.com, 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 February 25, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was March 17, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 18, 2011.

The Center appointed Gunnar Karnell as the sole panelist in this matter on March 28, 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

According to the publicly available WhoIs information, the disputed domain name <megaupload.co> was registered on September 13, 2010.

Since 2005, the Complainant operates an online storage and high speed file hosting service, providing its goods and services through its “Megaupload” website, accessible via the domain name <megaupload.com>. It allows Internet users to upload, download, store and share a broad array of files and data. The website is maintained in 19 languages.

The Complainant refers to its following United States trade mark registrations: MEGAUPLOAD, Reg. No. 3,682,203, September 15, 2009, and MEGAUPLOAD, Reg. No. 3,766,202, March 30, 2010 (first used in 2005 and 2006 respectively) .

5. Parties’ Contentions

The Complainant has requested that the disputed domain name <megaupload.co> be transferred to the Complainant.

A. Complainant

Statistics (Google, Alexa) show that the web site “www.megaupload.com” is one of the most visited web sites on the Web with (Google statistics) approximately 28 million unique visitors per month and 650 million page views.

The disputed domain name is identical to the Complainant’s trade mark MEGAUPLOAD, registered well before the disputed domain name. It consists solely of the Complainant’s trade mark with the added suffix “.co”. This only difference, the suffix “.co”, instead of the Complainant’s suffix “.com”, as in its domain name, is not distinguishing, but just only confusing.

The Respondent has no prior rights or legitimate interests in respect of the disputed domain name. It is not known by “Megaupload”. It does not own any business operating under that name and it holds no trademark registrations for the mark MEGAUPLOAD; nor has it been authorized or licensed by the Complainant to use its MEGAUPLOAD trade mark. It does not make a bona fide offer of goods or services, nor a legitimate or fair use of the disputed domain name. It resolves to a landing page that contains advertising for, and links to, companies and web sites that offer the same goods and services as those offered by the Complainant. The Respondent has registered and used the disputed domain name to take advantage of the Complainant’s reputation and goodwill associated with the MEGUPLOAD trade mark, with the sole intent to attract Internet users for the Respondent’s commercial gain.

The Complainant’s trade mark registrations predate the registration of the disputed domain name by more than five years. At that latter event, the Complainant’s goods and services were available at the web site accessible via “www.megaupload.com”. Also, the Complainant’s trade mark MEGAUPLOAD was widely known throughout the world, to have been, or to should have been, known by the Respondent. An Internet search would quickly have revealed the Complainant’s existence and ownership of the MEGAUPLOAD trade mark.

The disputed domain name was registered and it is being used in bad faith. The Respondent’s use of its disputed domain name to redirect Internet users to a web site that contains numerous links to the Complainant’s competitors is an intentional attempt to attract, directly or indirectly by an agent, commercial gain. The Respondent’s suffix “.co” to the dominant word “megaupload” aims at creating a confusing similarity. Furthermore, this has been set in system by the Respondent. Documents, introduced in support of the Complainant’s contentions, show that the Respondent is engaged in a pattern of registering domain names that are identical to well-known trade marks by registrations of misspellings of elements in domain names representing trade marks owned by others. Also, the Respondent holds its disputed domain name primarily for the purpose of selling it. It has been offered on the Internet for sale to the public for USD 10,000; a price clearly evidencing bad faith on the part of the Respondent.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

The factual foundation of the Complainant’s contentions, as presented in great detail by the Complainant, while supporting its non contradicted claim by written evidence and reference to earlier UDRP case decisions, leads the Panel to the following conclusions.

A. Identical or Confusingly Similar

For above-referenced reasons given by the Complainant, the disputed domain name <megaupload.co> is identical to the Complainant’s registered and well-known trade mark MEGAUPLOAD.

B. Rights or Legitimate Interests

The Complainant has established a prima facie case of lack of any Respondent’s rights or legitimate interests in respect of its disputed domain name and there has been no rebuttal by the Respondent. Nothing in the case file gives reason to believe that the Respondent has or has had any rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

Absent any indication in the case file of elements that might tell against giving credence to the Complainant’s assertions regarding facts leading up to its conclusions that the disputed domain name <megaupload.co> has been registered and used in bad faith, and in respect with the above-mentioned, the Panel confirms that the conditions for transfer of the disputed domain name to the Complainant are satisfied.

7. Decision

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 <megaupload.co> be transferred to the Complainant.

Gunnar Karnell
Sole Panelist
Dated: April 3, 2011

 

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