WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Team Viewer GmbH v. Private Registrations Aktien Gesellschaft / Pertshire Marketing Ltd.
Case No. D2012-1194
1. The Parties
The Complainant is Team Viewer GmbH of Göppingen, Germany, represented by Ingo Bednarz, Germany.
The Respondent is Private Registrations Aktien Gesellschaft of Kingstown, Saint Vincent and the Grenadines / Pertshire Marketing Ltd. of Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Names and Registrar
The disputed domain names <teamveiwer.com>, <teamviewe.com>, <teamviewr.com>, <temviewer.com>, <treamviewer.com> are registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 13, 2012. On June 13, 2012, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain names. On June 14, 2012, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 18, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 9, 2012.
The Center appointed Marilena Comanescu as the sole panelist in this matter on July 12, 2012. 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.
The language of the proceeding is English.
4. Factual Background
The Complainant holds trademark registration for TEAMVIEWER and is operating under the trade name TeamViewer GmbH since 2004. The Complainant is activating in the software industry, being the provider of one of the world wide leading solutions for desktop sharing and online collaboration over the Internet.
According to Complainant’s assertions, its products and services provided under the trademark TEAMVIEWER are used on more than 100 million computers in more than 50 countries all over the world. The Complainant invested substantial amounts in developing and marketing its goods and services.
The Complainant owns trademark registrations for TEAMVIEWER in the United State of America, Germany, Korea and European Community covering goods and services included in the International classes 9, 38 and 42.
The Complainant operates a large number of websites for selling its products online, including “www.teamviewer.com’’ which is the principal one.
The disputed domain names were created as follows: <teamveiwer.com> on October 3 2006, <teamviewe.com> on June 25 2007, <teamviewr.com> on June 17 2006, <temviewer.com> on October 31 2006, and <treamviewer.com> on September 7, 2007.
5. Parties’ Contentions
A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case, as follows:
(i) The disputed domain names <teamveiwer.com>, <teamviewe.com>, <teamviewr.com>, <temviewer.com>, <treamviewer.com> are confusingly similar to its trademark TEAMVIEWER:
All the disputed domain names are virtually identical to the Complainant’s trademark as they are misspellings using variations of one single letter to differentiate from the Complainant’s TEAMVIEWER trademark and its main Internet address; accordingly one letter was removed from the disputed domain names <teamviewe.com>, <teamviewr.com>, <temviewer.com>; one letter was added in the disputed domain name <treamviewer.com> and two letters were reversed in the disputed domain name <teamveiwer.com>.
“Teamviewer” is a non-generic invented word and the disputed domain names look like, sound like and make the same overall commercial impression as the trademark TEAMVIEWER creating thus confusion.
The misspellings or slight variations of the trademark in a domain name do not eliminate the confusing similarity between the disputed domain names and the trademark. Internet users searching for the Complainant may inadvertently type its trademark and be redirected to a website associated with the disputed domain names and believe these are somehow associated with the Complainant. Further, the confusion is going to arise due to Respondent’s use of the disputed domain names in connection with redirecting Internet users to websites offering services in direct competition with those offered by the Complainant and displaying the TEAMVIEWER trademark on the page headers.
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names:
The disputed domain names were registered 2-3 years after Complainant has registered its trademark TEAMVIEWER.
The Respondent has no trademark registration for TEAMVIEWER, has no connection with the Complainant and did not receive any license or consent to use its trademark in a domain name or in any other manner.
The Respondent does not fall under the circumstances listed by paragraph 4(c) of the Policy. Rather, the disputed domain names resolve to link farms, portals displaying without any consent the Complainant’s trademark as heading and providing sponsored links to competing computer software websites for the Respondent’s commercial gain.
(iii) The disputed domain names were registered and are being used in bad faith:
The Complainant’s trademark is fanciful and due to its extensive use it has became well-known all over the world and therefore the Respondent must have been aware of TEAMVIEWER mark and the corresponding goods and services when registering the disputed domain names especially that it has registered five typo spelling variations of the same.
The Respondent is using wrongfully the disputed domain names redirecting the Internet users looking for the Complainant to other websites containing competing goods for its own commercial gain. The Respondent’s intent was to create a false impression to the Internet users with regard to a potential connection between itself and the Complainant.
Typosquatting is evidence of bad faith, as established by previous UDRP panels. Variations of the Complainant’s mark in the disputed domain names are a deliberate attempt to exploit typographical mistakes when seeking the Complainant’s website.
Further, the Respondent’s use of privacy services and change of Registrar and contact details after receiving Complainant’s letters prior to commencing the present procedure is another indicative of bad faith.
The Respondent is a cybersquatter and has been involved in other UDRP procedures involving typosquatting, such as Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd., WIPO Case No. D2006-0762; Deutsche Börse AG v. Pertshire Marketing, Ltd, WIPO Case No. D2006-0786; Research In Motion Limited v. DomainDoorman LLC / Pertshire Marketing, Ltd, WIPO Case No. D2009-0321; and Realty Income Corporation v. Pertshire Marketing, Ltd, NAF Claim No. FA0908001278685.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
In accordance with paragraph 4(a) of the Policy, the Complainant must prove to the Panel that the following three circumstances are cumulatively met in order to obtain the transfer or cancellation of the disputed domain names:
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent does not have rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used by the Respondent in bad faith.
The Respondent’s failure to respond does not automatically result in a decision in the favor of the Complainant, the latter must establish each of the three elements provided by paragraph 4(a) of the Policy, above listed.
Consequently, the Panel shall further analyze the eventual concurrence of these circumstances in the present case.
A. Identical or Confusingly Similar
There are two requirements that a complainant must establish under this element, namely: that it has rights in a trademark, and, if so, that the disputed domain names are identical or confusingly similar to its mark.
The Complainant has rights in the TEAMVIEWER trademark, holding registrations worldwide since 2004.
To this Panel the disputed domain names <teamveiwer.com>, <teamviewe.com>, <teamviewr.com>, <temviewer.com>, <treamviewer.com> are obvious misspellings of the Complainant’s distinctive trademark, trade name and corresponding Internet address. In the case of the disputed domain names <teamviewe.com>, <teamviewr.com>, <temviewer.com>, the Respondent had deleted one letter; in the disputed domain name <treamviewer.com> the Respondent added one letter and in the case of the disputed domain name <teamveiwer.com> the Respondent reversed two letters.
It is well established that a domain name which contains a common or obvious misspelling of a trademark will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the disputed domain name1.
In the present case, all the disputed domain names are formed of the Complainant’s trademark TEAMVIEWER with small alterations that are obvious variations of typographical errors that can be easily made by Internet users when typing the Complainant’s mark to find its corresponding Internet address.
Further, the indicators for Top Level Domains (e.g. “.com”, “.info”, “.net”, “.org”) may be disregarded when considering the confusing similarity between a trademark and a domain name.
For all the above, the Panel finds that the disputed domain names <teamveiwer.com>, <teamviewe.com>, <teamviewr.com>, <temviewer.com> and <treamviewer.com> are confusingly similar to the Complainant’s trademark TEAMVIEWER.
Accordingly, the Panel finds that the first element of the Policy is established, and the Complainant has proven that the disputed domain names are confusingly similar to its trademark, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant has provided a prima facie case under this element of the Policy showing that it has had no relationship with the Respondent and has not granted the Respondent any right to register and use domain names containing its TEAMVIEWER trademark. Therefore, in line with prior UDRP decisions, the burden of production on this element shifts to the Respondent to demonstrate its rights or legitimate interests in the disputed domain names.
There is no evidence before the Panel to suggest that the Respondent has made a bona fide use of the disputed domain names, or has been known by these disputed domain names, or is making any legitimate noncommercial or fair use of the disputed domain names.
Although properly notified by the Center, the Respondent failed to submit any Response in the present procedure. Considering the other relevant circumstances of the case, the silence of the Respondent may support a finding that it has no rights or legitimate interests in respect of the disputed domain names. See also Alcoholics Anonymous World Services, Inc., v. Lauren Raymond, WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic.A.S., WIPO Case No. D2000-0011.
Furthermore, when the Complainant put the Respondent on notice regarding its trademark rights, the Respondent changed the registrar with which the disputed domain names are registered and used privacy service to conceal its true identity in a likely attempt to try to delay the legal proceedings against it and to continue to profit from the revenues obtained from the use of the disputed domain names.
At the same time, at the time the Complaint was filed, the Respondent was using the disputed domain names in connection to websites offering sponsored links for the sale of goods related to software containing, inter alia, products of the Complainant’s competitors. The pay-per-click (PPC) website would not normally fall within the bona fide use principles where such websites seek to take unfair advantage of the value of a trademark (See also Shon Harris v. www.shonharris.com c/o Whois Identity Shield, WIPO Case No. D2007-0997 and Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787).
For all these reasons, the Panel finds that the second element of the Policy is established, and the Respondent has no rights or legitimate interests in respect of the disputed domain names, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires proof of bad faith in both the registration and use of the disputed domain names.
When assessing the bad faith in the registration requirement, the following should be considered (1) whether the Respondent knew of the Complainant and its trademark, and (2) whether the Respondent targeted the Complainant to benefit from confusion generated by the similarity between the disputed domain names and the trademark. See Avon Products, Inc. v. Mary Ultes, WIPO Case No. D2009-0471.
The Complainant’s distinctive trademark has been registered and used worldwide since 2004. Further, the Complainant holds numerous domain names formed of the TEAMVIEWER trademark in order to promote and sell its products and services worldwide online.
The disputed domain names <teamveiwer.com>, <teamviewe.com>, <teamviewr.com>, <temviewer.com>, <treamviewer.com> were registered in 2006-2007 and incorporate entirely the Complainant’s trademark with minor typographical errors. It is inconceivable for this Panel to imagine a reasonable reason for someone to legitimately hold several domain names corresponding to a third party trademark or trade name with minor typographical errors. See also Bang & Olufsen a/s v. Unasi Inc., WIPO Case No. D2005-0728; Playboy Enterprises v. Movie Name Company, WIPO Case No. D2001-1201.
From the above, the Panel concludes that indeed the Respondent had knowledge of the Complainant’s trademark and business and registered variations of typographical errors for the TEAMVIEWER trademark as domain names in order to create confusion and divert Internet users on its websites.
At the time the Complaint was filed, the Respondent was using the disputed domain names for websites displaying links to software products of the Complainant’s competitors. Furthermore, such competing goods displayed on the corresponding websites increase the confusion between the disputed domain names and Complainant’s trademark and corresponding goods.
The Respondent is using without permission the Complainant’s distinctive trademark in order to get traffic on its websites and to obtain commercial gain from the false impression created for the Internet users with regard to a potential affiliation or connection with the Complainant. This impression is increased by the use of the Complainant’s trademark in the content of the website corresponding to the disputed domain names and the nature of the goods and services provided on the corresponding websites, which are identical to those offered by the Complainant.
Paragraph 4(b) of the Policy sets out a nonexclusive list of circumstances that shall be evidence of bad faith registration and use of a domain name.
Paragraph 4(b)(iv) of the Policy provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” is evidence of registration and use in bad faith.
Given that the disputed domain names incorporate the Complainant’s known trademark and the websites operated under the disputed domain names display the Complainant’s trademark indeed in this Panel’s view, the Respondent intended to attract Internet users accessing the website corresponding to the disputed domain names who may be confused and believe that they are websites held, controlled by, or somehow affiliated or related to the Complainant, for its commercial gain. In this way, the Respondent is obtaining commercial gain by diverting Internet users searching for the Complainant and, in the same time, is disrupting the business of the Complainant by diverting its potential consumers to websites of its competitors.
Further, the Respondent chose not to participate in these proceedings and has not contested any of the allegations made by the Complainant, and did not provide any evidence whatsoever of any legitimate noncommercial, or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or tarnish the Complainant’s trademark. Such passive attitude of the Respondent can be considered further evidence of bad faith in the present circumstances. See also Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Kabushiki Kaisha Toshiba v. Shan Computers, WIPO Case No. D2000-0325; Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787.
The Respondent is using a proxy service in order to conceal its true identity. Such use of a privacy service is not in and of itself an indication of bad faith from the part of the Respondent2, however, in such case, after being notified by the Complainant with regard to its trademark rights, the Respondent changed the registrar with which the disputed domain names are registered and used privacy service to conceal its true identity in a likely attempt to try to delay the legal proceedings against it and to continue to profit from the revenues obtained from the use of the disputed domain names.
In addition, paragraph 4(b)(ii) of the Policy lists the situation when the Respondent has registered the disputed domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct. Paragraph 3.3 of the WIPO Overview 2.0 explains that a pattern of conduct involves multiple UDRP cases with similar fact situations. Here, the Respondent has been involved in several other similar UDRP cases, involving misspellings of third party’s trademarks used in connection to link farms, as listed in the Complaint and Section A above.
For all these reasons, the Panel finds that the third element of the Policy is established on the record in these proceedings, and accordingly that the disputed domain names were registered and are being used in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
7. Decision
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 names <teamveiwer.com>, <teamviewe.com>, <teamviewr.com>, <temviewer.com> and <treamviewer.com> be transferred to the Complainant.
Marilena Comanescu
Sole Panelist
Dated July 17, 2012
1 See paragraph 1.10 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and cases cited therein.
2 See paragraph 3.9 of the WIPO Overview 2.0 and cases cited therein.