WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
ADT Services AG, ADT Security Services, Inc. v. AnneMarie Ferraro
Case No. DCO2011-0052
1. The Parties
Complainant is ADT Services AG of Schaffhausen Switzerland and ADT Security Services, Inc. of Florida, United States of America (“USA”), represented by FairWinds Partners, LLC, USA.
Respondent is AnneMarie Ferraro of Virginia, USA.
2. The Domain Name and Registrar
The disputed domain name <adtpulse.co> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 9, 2011. On September 9, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On the same date, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on September 15, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint on September 20, 2011.
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 Respondent of the Complaint, and the proceedings commenced on September 22, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 12, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 13, 2011.
The Center appointed Lorelei Ritchie as the sole panelist in this matter on October 21, 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 Complainants run a security and surveillance company spanning 50 countries worldwide. In 2008, for example, Complainants’ had over 62,000 employees and about USD$8 billion in gross revenue.
The Complainants are the owner of several trademarks for ADT around the world, including in the USA where the Respondent lists her address of record. These include United States Registration Nos. 0710507 (1961); 0710708 (1961); 0838956 (1967); 846966 (1988); and 2399377 (2000); as well as International Registration Nos. 000102871 (1998); and 1296862 (2001).
The Complainants own the registration for the domain name <adt.com.>. They first registered this domain name on April 9, 2000. The Complainants use the URL associated with <adt.com> to promote products and services under their ADT trademarks.
The Complainants have also begun a product line using the trademark ADT PULSE, designed to allow their customers to access Complainants’ security devices from their smartphones. The Complainants registered the disputed domain name <adtpulse.com> on August 26, 2009 in order to promote products and services under this trademark.
Respondent registered the disputed domain name <adtpulse.co> on July 28, 2010. Respondent has no affiliation with the Complainants. Respondent has provided sponsored links from the URL associated with the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with the Complainants or Complainants’ services. These include competing products and services for security and surveillance. The Complainants have not authorized these links, nor the use of their trademarks therewith.
5. Parties’ Contentions
The Complainants contend that: (i) <adtpulse.co> is identical or confusingly similar to the Complainants’ trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith.
Respondent did not reply to the Complainants’ contentions in this proceeding.
6. Discussion and Findings
A. Identical or Confusingly Similar
This Panel must first determine whether <adtpulse.co> is identical or confusingly similar to a trademark or service mark in which Complainants have rights in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that it is. The disputed domain name directly incorporates Complainant’s registered trademark ADT, and merely adds the descriptive word “pulse.”
The Panel finds that the added word would be perceived by Internet users as descriptive of a website where they could find information about Complainant’s ADT PULSE products and services, which are specific security devices marketed by Complainants alongside their ADT trademark. So, consumers would expect to find information offered by the Complainants on such a website.
Numerous UDRP panels have agreed that supplementing or modifying a trademark with generic or descriptive words does not make a domain name any less “identical or confusingly similar” for purposes of satisfying this first prong of paragraph 4(a)(i) of the Policy. See, for example, Microsoft Corporation v. Step-Web, WIPO Case No. D2000-1500 (transferring <microsofthome.com>); General Electric Company v. Recruiters, WIPO Case No. D2007-0584 (transferring <ge-recruiting.com>); CBS Broadcasting, Inc. v. Y2K Concepts Corp., WIPO Case No. D2000-1065 (transferring <cbsone.com>).
This Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which the Complainants have rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Policy provides some guidance to respondents on how to demonstrate rights or legitimate interests in the domain name at issue in a UDRP dispute. For example, paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
Respondent did not reply to the Complaint, however, and no evidence has been presented to this Panel that might support a claim of Respondent’s rights or legitimate interests in the disputed domain name. Rather, as mentioned in Section 4 of this Panel’s decision, Respondent has used the disputed domain name to divert Internet users via sponsored links, to websites that are unaffiliated with the Complainants or Complainants’ services.
C. Registered and Used in Bad Faith
There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] 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 [respondent’s] website or location or of a product or service on [the] web site or location”. As noted in Section 4 of this Panel’s decision, Respondent has provided sponsored links from the URL associated with the disputed domain name to websites that describe or advertise goods or services that are unaffiliated with the Complainants or Complainant’s services. These include competing products and services for security and surveillance. The Complainants have not authorized these links, nor the use of their trademarks therewith. Hence, Respondent is trading on the goodwill of Complainants’ trademarks to attract Internet users, presumably for Respondent’s own commercial gain.
Therefore, this Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) 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 disputed domain name <adtpulse.co> be transferred to the Complainants.
Dated: October 29, 2011