WIPO Domain Name Decision: D2007-0399

WIPO

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

General Electric Company v. Ted Chen

Case No. D2007-0399

1. The Parties

The Complainant is General Electric Company, Fairfield, Connecticut, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.

The Respondent is Ted Chen, Fremont, California, United States of America.

2. The Domain Names and Registrar

The disputed domain names:

<carecreditaccount.info>

<carecreditcard.info>

<carecreditcards.info>

<carecreditcredit.info>

<carecreditfinancing.info>

<carecreditgemb.info>

<carecreditin.info>

<carecreditlogin.info>

<carecreditonline.info>

<carecreditpay.info>

<carecreditpayment.info>

<carecreditpayments.info>

<carecreditpets.info>

<carecreditveterinary.info>

<carecreditvet.info>

<carecreditvets.info>

<gecarecredit.info>

<gecautolease.info>

<gedirectpurchase.info>

(hereafter referred to as the “19 disputed domain names”) are all registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 14, 2007. On March 19 and 29, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with each domain name at issue. On March 30, 2007, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 April 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April 24, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 1, 2007.

The Center appointed Sandra J. Franklin as the sole panelist in this matter on June 1, 2007. 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

Complainant is the well-known, long-standing American company General Electric. Complainant owns the registered mark GE, which can be traced back to the late 1800’s, and the registered mark CARECREDIT, in use since 1994. Both marks are widely used by Complainant alone and in combination with other words. Complainant also holds several registered marks and domain names for many such combinations. Respondent registered 19 domain names with the various combinations of Complainant’s GE and CARECREDIT marks, along with “.info”, all well after Complainant had established the notoriety of both marks, both in the United States and internationally.

5. Parties’ Contentions

A. Complainant makes the following assertions:

1. Respondent’s 19 disputed domain names are identical to Complainant’s GE and/or CARECREDIT marks.

2. Respondent does not have any rights or legitimate interests in the 19 disputed domain names.

3. Respondent registered and used the 19 disputed domain names in bad faith.

B. Respondent failed to submit a Response in this proceeding.

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009 (February 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) Respondent has no rights or legitimate interests in respect of the domain name; and

(ii) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Complainant has established rights in its GE and CARECREDIT marks through registration of the mark with the United States Patent and Trademark Office (“USPTO”) and elsewhere.

Respondent’s 19 disputed domain names are confusingly similar to Complainant’s marks because each of Respondent’s domain names incorporates one or both of Complainant’s marks and merely adds generic words and the generic top-level domain (“gTLD”) “.info” to the mark. Neither addition distinguishes Respondent’s domain names from Complainant’s marks and, indeed, they simply add to the likelihood of confusion by adopting combinations similar to those used by Complainant. See Parfums Christian Dior v. 1 Netpower, Inc., WIPO Case No. D2000-0022 (March 3, 2000) (finding that four domain names that added the descriptive words “fashion” or “cosmetics” after the trademark were confusingly similar to the trademark); see also Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd., WIPO Case No. D2000-1153 (October 17, 2000) (finding that the domain name <bramblesequipment.com> is confusingly similar because the combination of the two words “brambles” and “equipment” in the domain name implies that there is an association with the complainant’s business); see also Rollerblade, Inc. v. McCrady, WIPO Case No. D2000-0429 (June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum, December 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”)

The Panel finds that Policy, paragraph paragraph 4(a)(i) has been satisfied.

B. Rights or Legitimate Interests

Complainant alleges that Respondent does not have rights or legitimate interests in the 19 disputed domain names stating inter alia that there is no relationship between them giving rise to any license, permission or other right to use Complainant’s marks. Complainant’s submissions persuasively establish a prima facie case which shifts the burden to Respondent to prove that Respondent does have rights or legitimate interests in the disputed domain name under Policy paragraph 4(a)(ii). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum October 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy paragraph 4(a)(ii).”) See Am. Online, Inc. v. AOL Int’l, D2000-0654 (WIPO August 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum December 31, 2002) (“Respondent’s failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”)

There is no evidence in the record to indicate that Respondent is commonly known by the any of the 19 disputed domain names. Therefore, the Panel finds that Respondent has failed to establish rights or legitimate interests in the 19 disputed domain names under Policy, paragraph 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum, January 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).

Complainant has submitted evidence that Respondent is using the 19 disputed domain names to operate websites featuring links to various commercial websites unrelated to Complainant’s business. The Panel infers from Respondent’s use of the 19 disputed domain names that it is collecting click-through fees for each Internet user redirected to a website other than Complainant’s, neither a bona fide offering of goods or services pursuant to Policy, paragraph 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy, paragraph 4(c)(iii). See Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum, June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum, October 17, 2003) (“Respondent’s use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant’s business does not represent a bona fide offering of goods or services under Policy, paragraph 4(c)(i) or a legitimate noncommercial or fair use under Policy, paragraph 4(c)(iii).”).

The Panel finds that Policy, paragraph 4(a)(ii) has been satisfied.

C. Registered and Used in Bad Faith

Respondent is using the 19 disputed domain names to operate a website or websites that feature links to various commercial websites, from which Respondent presumably collects click-through fees. The Panel finds that Respondent’s use will likely cause confusion among Internet users as to Complainant’s sponsorship of or affiliation with the resulting website. Profit (intended or actual) from such confusion is evidence of bad faith registration and use pursuant to Policy, paragraph 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum, November 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy, paragraph 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum, August 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).

Furthermore, Respondent has engaged in a pattern of bad faith by registering and using numerous domain names which incorporate third party trademarks, here with the registration of 19 such domain names, but also with other famous marks such as in “www.hallmarkgreetingcard.com” and “www.walmartbenefits.com”.

The Panel finds that Policy, paragraph 4(a)(iii) has been satisfied.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names