WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Apple Inc. v. Hulmiho Ukolen, Poste restante / Domain Admin, Whois Protection
Case No. D2015-0461
1. The Parties
The Complainant is Apple Inc. of Cupertino, California, United States of America ("United States"), represented by Kilpatrick Townsend & Stockton LLP, United States.
The Respondent is Hulmiho Ukolen, Poste restante of Helsinki, Finland / Domain Admin, Whois Protection of Prague, Czech Republic.
2. The Domain Name and Registrar
The disputed domain name <appleaccount.com> is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING (SHANGHAI) CO., LTD dba HebeiDomains.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 17, 2015. On March 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 29, 2015, the Registrar 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 Complainant on March 20, 2015 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 22, 2015
On March 20, 2015, the Center transmitted an email in English and Finnish regarding the language of the proceeding. On March 22, 2015, the Complainant submitted its request that English be the language of the proceeding by email to the Center. The Respondent did not submit any comments within the specified due date.
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 in English and Finnish, and the proceedings commenced on March 31, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 21, 2 015.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on April 29, 2015. 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 Complainant is the owner of the trademark APPLE, which is used for a range of computers, mobile communication and media devices. The trademark has been registered in numerous countries throughout the world, such as a United States trademark registration No. 1078312, filed on March 25, 1977 and registered on November 29, 1977.
The disputed domain name was registered on December 23, 2006.
5. Parties' Contentions
The language of these administrative proceedings should be English, even though the registration agreement may be in another language. The website at the disputed domain name is in English, as have prior websites also been. A call in a telephone number on the website is a telephone number in the United States and leads to an English-speaking call center. Also the disputed domain name includes the English word "account".
The disputed domain name is confusingly similar to the Complainant's trademark, because it incorporates the APPLE trademark in its entirety. The mere addition of a descriptive term "account" does nothing to lessen the similarity to the APPLE trademark. Consumers will believe that the disputed domain name is related to the Complainant, because it suggests that the disputed domain name is a source of information and services related to accounts that consumers maintain with the Complainant.
The Respondent has no rights or legitimate interests in the disputed domain name. There is no relationship between the Complainant and the Respondent that could give rise to any permission by which the Respondent could use the disputed domain name. The Respondent is neither using the disputed domain name in connection with a bona fide offering of goods or services nor making legitimate noncommercial or fair use of the disputed domain name.
The disputed domain name is based on the Complainant's well-known trademark APPLE and is being used in connection with for-profit schemes. The Respondent is also using the disputed domain name to divert web traffic to various for profit schemes, such as a pay-per-click revenue website advertising.
Furthermore, the disputed domain name directs web traffic to a website warning about alleged security risks and promoting a service using a call-in number offering to remove adware or spyware from the computer. The removal carries a charge for removing the alleged spyware or adware. This is a profit making scheme.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Language of the proceedings
The language of the proceeding is the language of the registration agreement, unless both parties agree otherwise, or the panel determines otherwise under paragraph 11 of the Rules. In this case, the language of the registration agreement is Finnish. According to the Complainant, the Registrar's website is in English, it contains a telephone number in the United States, which leads to an English-speaking call center.
The Respondent has not contradicted these statements and has not objected for English to be the language of the proceeding. Accordingly, in view of the circumstances of this case, the Panel determines that the language of the proceeding shall be English.
In order to obtain the transfer of a domain name, a complainant must prove the three elements of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith.
B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The Complainant has shown that it has registered the trademark APPLE in a number of jurisdictions, including the United States. The Complainant has therefore established that it has rights to the trademark APPLE.
In terms of confusing similarity, the disputed domain name incorporates the Complainant's trademark in its entirety. The trademark is combined with the common term "account" in the disputed domain name. This may lead Internet users to believe that the disputed domain name would relate to customer accounts maintained by the Complainant. The Panel finds that a domain name is generally confusingly similar to a mark where it merely adds a common word after a distinctive trademark. Accordingly, the Complainant has established that the disputed domain name is confusingly similar to its trademark.
The Panel therefore finds that the first element of the Policy is established.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant establishes that the Respondent has no rights or legitimate interests in the disputed domain name.
The consensus view among UDRP panels is that once a complainant has made a prima facie case indicating the absence of the respondent's rights or legitimate interests in a disputed domain name, the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270 and paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
The Complainant has submitted that it is not affiliated with the Respondent, it has not authorized the Respondent to use the trademark APPLE or the disputed domain name, that the Respondent is not commonly known by the disputed domain name, and that the Respondent is not making legitimate noncommercial use of the disputed domain name and that it is not used for a bona fide offering of goods or services. The Respondent has not rebutted these arguments.
The Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Therefore, the Panel finds that the second element of the Policy is fulfilled.
D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establishes that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b)(i) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
"(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) the 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 you have engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business or competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to his website 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 website or location or of a product or service on his website or location."
The Complainant has submitted a good amount of evidence and prior UDRP Panel decisions showing that the trademark APPLE is a well-known trademark. The Panel accepts this contention. The Panel therefore considers that the Respondent must have been aware of the Complainant's trademark when registering the disputed domain name.
The Complainant has contended that the disputed domain name is used for fraudulent for profit schemes. According to the evidence by the Complainant, the website to which the disputed domain name resolves, it promotes a service using a call-in number offering to remove adware or spyware from the callers computer. There is a charge for removing the alleged adware or spyware.
According to the Complainant's evidence, the website is also offering mobile telephones from the Complainant's competitors. The Respondent has therefore used the disputed domain name to intentionally attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's well-known trademark.
Therefore, the Panel finds that the third element of the Policy is fulfilled.
For 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 <appleaccount.com> be transferred to the Complainant.
Date: May 12, 2015