WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wisdom Audio Corporation v. Ace View
Case No. D2015-1900
1. The Parties
The Complainant is Wisdom Audio Corporation of Carson City, Nevada, United States of America ("United States"), represented by Polson Intellectual Property Law, United States.
The Respondent is Ace View of Jakarta, DKI Jakarta, Indonesia.
2. The Domain Name and Registrar
The disputed domain name <wisdom-audio.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 23, 2015. On October 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 27, 2015, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 29, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 19, 2015.
The Center appointed Alistair Payne as the sole panelist in this matter on November 24, 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 produces professional audio equipment and sells it under the WISDOM AUDIO mark. It has a registered trade mark in the United States for this mark under registration number 2,247,419 which was filed on December 15, 1997. It has maintained a website at the domain name <wisdomaudio.com> for information, promotion, and marketing purposes since the Complainant's creation on September 29, 1997. The Complainant also owns United States trade mark registration 3,168,297 filed on December 9, 2005 for its "W" logo mark.
The Respondent registered the disputed domain name on September 28, 2013.
5. Parties' Contentions
The Complainant submits that it owns a registered trade mark right for its WISDOM AUDIO word mark as set out above and that the disputed domain name only differs from its mark by the inclusion of a dash between the words "wisdom" and "audio" and is therefore confusingly similar to the Complainant's trade mark rights.
The Complainant says that it has not authorised the Respondent to use its mark and that it has no affiliation or connection with the Respondent. It says that the Respondent must have been aware of its registered marks at the time of the registration of the disputed domain name as the Respondent is using an exact copy of the Wisdom Audio "W" logo registered trade mark on the home page of the website at the disputed domain name and in addition the Respondent digitally altered an image of a diorama depicting a model building to include the Wisdom Audio "W" mark. In addition the Complainant notes that the Respondent registered the disputed domain name in 2013, more than 15 years after the Complainant began using the mark and notes that while individually the words "wisdom" and "audio" may be common English terms, the conjoint expression in the mark is not commonly used in the English language.
The Complainant says that the Respondent is not using the disputed domain name for noncommercial purposes which is demonstrated by the fact that the website at the disputed domain name offers goods or services that are in direct competition with the Complainant's goods or services. It is therefore, according to the Complainant, seeking to mislead Internet users, and to divert them to the Respondent's website at the disputed domain name. This says the Respondent is not legitimate activity.
As far as bad faith is concerned the Complainant maintains that the Respondent is acting in bad faith by intentionally using the disputed domain name to confuse consumers as to the source or affiliation of the Respondent's goods and services, which under paragraph 4(b)(iv) of the Policy amounts to evidence of registration and use in bad faith. It further says that there is no plausible explanation for the Respondent's registration of the disputed domain name other than to trade on the goodwill of the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant owns registered trade mark rights as set out above for the WISDOM AUDIO mark. The disputed domain name differs from its registered mark only by the inclusion of a hyphen which difference does not suffice to distinguish the disputed domain name. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's registered trade mark right and that the Complaint succeeds under this element of the Policy.
B. Rights or Legitimate Interests
The Complainant asserts that it has not authorised the Respondent's use of its mark in the disputed domain name and that it is in no way affiliated or connected with the Respondent. It says that based on the content of the website at the disputed domain name it is apparent that the Respondent was aware of the Complainant's business and website because the Respondent has copied various elements of the Complainant's marks and get-up or other features on its website. Combined with the fact that the Respondent appears to be in direct competition with the Complainant in that it is advertising audio equipment from its website, the Complainant says that the Respondent is not making a noncommercial use of the disputed domain name and that its use is not bona fide or legitimate.
The Complainant has made out a prima facie case under this element of the Policy and there is nothing before the Panel to rebut this case. In addition for the reasons set out under section 6C below, the Panel finds that the Complainant has made out its case that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complaint succeeds under the second element of the Policy.
C. Registered and Used in Bad Faith
The disputed domain name was registered almost 16 years after the Complainant filed its United States trade mark registration for its WISDOM AUDIO mark. Considering that the combined expression or mark, WISDOM AUDIO is not commonly used in the English language and that the website at the disputed domain name appears to contain certain elements from the Complainant's website and get-up (including in particular the Wisdom Audio "W" mark) the Panel infers that the Respondent was aware of the Complainant's mark and business in 2013 when it registered the disputed domain name.
The Complainant maintains that the Respondent is acting in bad faith by intentionally using the mark to confuse consumers as to the source or affiliation of the Respondent's goods and services, which under paragraph 4(b)(iv) of the Policy amounts to evidence of registration and use in bad faith. It appears to the Panel that the Respondent purposefully registered the disputed domain name (which is identical to the Complainant's mark apart from the addition of a hyphen) in order to confuse Internet users and to divert them to the Respondent's website. Based on the similarity of the disputed domain name to the Complainant's mark, the use by the Respondent of the Complainant's mark and get-up on its website (including as to colour and design), the use of the copyright notice "Wisdom Audio 2014" and the fact that the Respondent also appears to be selling professional audio equipment, Internet users could very well be confused into thinking that they have arrived on the Complainant's website or that there is a connection or affiliation that does not in fact exist. As a result the Panel finds that the elements of paragraph 4(b)(iv) of the Policy are made out and that this is evidence of the registration and use of the disputed domain name in bad faith. Accordingly, the Complaint also succeeds under the third element of the Policy.
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 <wisdom-audio.com> be transferred to the Complainant.
Date: December 1, 2015