WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Siemens AG v. Charles Mack
Case No. D2015-2026
1. The Parties
The Complainant is Siemens AG of Munich, Germany, represented by Müller Fottner Steinecke, Germany.
The Respondent is Charles Mack of Cleveland, New York, United States of America ("United States").
2. The Domain Name and Registrar
The disputed domain name <siemen-stiftung.org> 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 November 9, 2015. On November 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 10, 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 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 November 12, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 3, 2015.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on December 10, 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, Siemens AG, is one of the world's largest electrical engineering companies. It provides innovative technologies and comprehensive knowhow to benefit customers in 190 countries. Founded more than 150 years ago, the Complainant is active in the areas of automation and control, power, medicine, transportation, information and communications.
The Complainant owns several registrations for the SIEMENS mark, including International Trademark number 637074, registered March 31, 1995, and Community Trade Marks 4240263 and 8429714, registered March 28, 2006 and February 17, 2010, respectively.
The SIEMENS mark is also used by Siemens Stiftung i.e., the "Siemens Foundation" (the German word for Foundation is "Stiftung"). The Siemens Foundation operates in the fields of basic services, education and culture and uses the mark SIEMENS pursuant to a License Agreement with the Complainant.
The Complainant does business in the United States, where the Respondent is domiciled. This can be seen from the excerpt from the Complainant's website set out at Annex 5 to the Complaint.
The disputed domain name was registered on October 19, 2014, and resolves to a website hosting what appear to be pay-per-click links. The disputed domain name has been used to send fraudulent emails.
5. Parties' Contentions
1. The Complainant is the owner of the SIEMENS mark and the disputed domain name <siemen-stiftung.org> is confusingly similar to this mark.
2. The Respondent has no rights or legitimate interests in the disputed domain name.
3. The disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In the absence of a Response, the Panel accepts the veracity of the Complainant's evidence and proceeds to determine the Complaint on the basis of the Complainant's evidence only.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered rights in the SIEMENS mark.
The dominant component of the disputed domain name – "siemen" – is an obvious misspelling of the mark SIEMENS. It contains six of the seven letters of the mark SIEMENS. The lack of an "s" in the disputed domain name cannot prevent confusion.
A domain name which contains an obvious misspelling of a trademark will normally be found to be confusingly similar to the trademark where the misspelled trademark is the dominant component of the domain name. See Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings WIPO Case No. D2004-0971 and Siemens AG v. Simens.Com, WIPO Case No. D2005-0927.
In these circumstances the Panel finds that the disputed domain name is confusingly similar to the mark SIEMENS in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent is not and has never been the Complainant's representative, employee or licensee. It is also not otherwise authorized to use the SIEMENS mark. The Complainant does not have any connection to the Respondent.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. It has not been commonly known by the disputed domain name. It is not making any legitimate noncommercial or fair use of the disputed domain name.
Instead, the Respondent is using the disputed domain name to mislead and divert Internet users. This can be seen from excerpts of the website resolving from the disputed domain as set out at Annex 6 to the Complaint. This website contains numerous links to webpages carrying advertising banners for various businesses.
Also the Respondent, through an email address connected to the disputed domain name, regularly contacts people from all over the world (for example in Bosnia and Herzegovina, Canada and the United States) pretending to represent Siemens Stiftung. The Respondent in these emails claims that the contacted person has been awarded USD 280,000 and asks for bank account details in order to transfer the funds.
It follows that the disputed domain name has been used by the Respondent to perpetrate fraud.
On this evidence, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
At the time of registration, the Respondent knew or should have known about the Complainant's earlier rights in the trademark SIEMENS, which is well known. See Siemens AG v. Dorofeev Konstantin, WIPO Case No. D2013-0923, Siemens AG v. Mr Ozgul Fatih, WIPO Case No. D2010-1771 and Nokia Corporation, Siemens AG, Nokia Siemens Networks Oy v. Chen Fang Fang, WIPO Case No. D2008-1908.
The fact that the disputed domain name is almost identical to the domain name <siemens-stiftung.org>, as used by Siemens Stiftung, is an additional indication that the disputed domain name was registered in bad faith.
That the Respondent is using the disputed domain name to send fraudulent emails establishes use in bad faith. It follows that the Complainant also succeeds in establishing the third Policy element.
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 <siemen-stiftung.org> be transferred to the Complainant.
Clive Duncan Thorne
Date: December 23, 2015