WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Surecom Corporation NV, v. Filearn, Thomas Standford
Case No. D2015-0824
1. The Parties
The Complainant is Surecom Corporation NV of Willemstad, Curacao, Overseas Territory of the, Netherlands, represented by Eidsness Law Offices, United States of America.
The Respondent is Filearn, Thomas Standford of Vienna, Austria1.
2. The Domain Name and Registrar
The disputed domain name <cam4-archiver.com> ("Domain Name") is registered with eNom (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 12, 2015. On May 12, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 13, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 14, 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 amendment to the Complaint on May 15, 2015.
The Center verified that the Complaint together with the amendment to 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 May 19, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 8, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 10, 2015.
The Center appointed David Stone as the sole panelist in this matter on June 18, 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 owns and operates a free, live adult web cam site known as <cam4.com>. The Complainant has owned the <cam4.com> domain name since it first registered it in July 1999. In June, 2007, the Complainant launched its adult web cam site utilizing the <cam4.com> domain name. Data from Google Analytics and Alexa Data show that, at present, <cam4.com> has a traffic ranking of 1,045th in the world.
The Complainant holds a number of registrations for CAM4:
- Registration No. 4,062,460 with the United States Patent and Trademark Office, filed in December 2010, registered on November 29, 2011, classes 35 and 38.
- Registration No. 10,053,701 with the Office for Harmonization in the Internal Market, registered on November 16, 2011, classes 35 and 41.
- Registration No. TMA825,898 with the Canadian Intellectual Property Office, filed November 24, 2010, registered June 8, 2012, first use in June 2007.
The Complainant also has pending trade mark applications for CAM4 in Greece and Australia.
The Respondent registered the Domain Name on August 20, 2013. The web site at the Domain Name shows adult web cam content.
5. Parties' Contentions
The Complainant asserts that the Domain Name is identical, or confusingly similar, to the trade mark <cam4.com> in which it has rights.
Further, the Complainant alleges that the Domain Name features the CAM4 mark in its entirety, and adds on the descriptive word "archiver", a term that it says is likely to be associated with its CAM4 mark and the goods and services offered under that mark, being stored or archived content.
The Complainant submits that the Respondent has no rights or legitimate interests in the Domain Name as it says that the Respondent has no trade mark rights in, and has not been known by, the name "Cam4-archiver.com".
The Complainant submits that the Domain Name has been registered and used in bad faith, as evidenced by the Respondent stripping or recording images of <cam4.com> broadcasters and displaying them on its web site, using the CAM4 trade mark and infringing the copyrights of these broadcasters and the copyrights licensed to the Complainant.
The Complainant requests that the Domain Name be transferred to it.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets out three requirements that the Complainant must prove in order to succeed:
(i) that the Respondent's Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,
(iii) that the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant provided evidence that it has registered the CAM4 trade mark in the United States, Europe and Canada. The Complainant also provided data showing that <cam4.com> has a traffic ranking of 1,045th in the world, meaning only 0.003% of all active web sites in the world have more traffic and page-views than <cam4.com>. It is clearly a popular web site.
The Domain Name is confusingly similar to the CAM4 trade mark as it features the CAM4 mark in its entirety and adds on a the descriptive word "archiver", a term likely to be understood, in context, as referring to archived or stored web content. The addition of a descriptive suffix is not enough to avoid similarity, nor does it add anything to avoid confusion.
The Panel finds that the Complainant has satisfied the condition set out in the Policy, paragraph 4(a)(i), and that the Domain Name is confusingly similar to the Complainant's trade mark in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the non-exhaustive criteria which determine whether a domain name registrant has rights or legitimate interests in a domain name, namely if it has a:
(i) prior bona fide offering of goods or services;
(ii) common association with the domain name; or
(iii) legitimate noncommercial use.
The Complainant says that the Respondent is not associated with the Domain Name, has not been known by the name "Cam4-archiver.com" and there is no evidence that the Respondent was using or planning to use <cam4-archiver.com> in a bona fide offering of goods or services. The content to be seen at the website at the Domain Name is not a noncommercial use. The Panel has not received evidence from the Respondent to confirm that it has a legitimate interest in the Domain Name.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) sets out the non-exhaustive criteria for bad faith. Bad faith constitutes the intention to register and use a domain name in order to:
(i) sell, rent, or transfer the domain name to the trade mark owner (or a competitor thereof) for a profit;
(ii) prevent the trade mark owner from registering its trade mark in a domain name;
(iii) disrupt the business of a competitor; or
(iv) divert Internet traffic for commercial gain.
The Complainant asserts that the Respondent clearly picked CAM4 to usurp the Complainant's rights, in bad faith. The Complainant submits that the Respondent cannot argue that it was only registering generic or surname words, with no particular interest in targeting the Complainant's trade and service mark because the Respondent is misappropriating content from the "www.cam4.com" web site to display on the Domain Name.
The Complainant also asserts that the Respondent has intentionally tried to attract Internet users to its own web site by creating a likelihood of confusion with the <cam4.com> Domain Name for commercial gain. By doing so, the Respondent is also attempting, in bad faith, to divert Internet traffic to its own web site for commercial gain. The Complainant provided with the Complaint examples of consumer complaints.
The Panel finds that the criteria in the Policy in paragraph 4(b)(iii) and (iv) are made out.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <cam4-archiver.com>, be transferred to the Complainant.
Date: July 3, 2015
1 The Complaint was originally filed against WhoIsGuard, Inc (a privacy service) and an individual located in the Philippines. The Registrar has confirmed to the Center that the registrant of the disputed domain name is Filearn, Thomas Standford.