Complainant is Atlas Copco Aktiebolag of Nacka, Sweden, internally represented.
Respondent is Above.com Domain Privacy of Beaumaris, Victoria, Australia / Transure Enterprise Ltd of Tortola, Virgin Islands, Overseas Territory of United Kingdom of Great Britain and Northern Ireland.
The disputed domain names <atlascopcp.com> and <usatlascopco.com> (collectively “Disputed Domain Names”) are registered with Above.com, Inc. (“Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 16, 2010. On February 17, 2010, the Center transmitted by email to Registrar a request for registrar verification in connection with the Disputed Domain Names. On February 18, 2010, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Names which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an Amended Complaint on February 19, 2010 (hereinafter, “Complaint” for economy of expression). 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 Respondent of the Complaint, and the proceedings commenced on February 22, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 14, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on March 16, 2010.
The Center appointed Mark Ming-Jen Yang as the sole panelist in this matter on March 24, 2010. 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.
Complainant is the owner of trademark registrations worldwide for the mark ATLAS COPCO including Swedish registration No. 148653 (registered September 13, 1974), Australian registration No. 328377 (registered February 7, 1979), and United States registration No. 1526505 (registered February 28, 1989) (collectively, the “ATLAS COPCO Trademark”).
Respondent registered the Disputed Domain Names on November 26, 2009 and April 19, 2009 respectively.
Complainant contends (in accordance with paragraph 4(a) of the Policy) that the Disputed Domain Names are confusingly similar with the ATLAS COPCO Trademark in which it has rights; that Respondent has no rights or legitimate interests in the Disputed Domain Names; and that Respondent registered and uses the Disputed Domain Names in bad faith.
Respondent did not reply to Complainant's contentions and is in default.
One fundamental requirement of due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules, and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for the Panel to conclude that the Center discharged its obligations under Rules, paragraph 2(a) (see Section 3, Procedural History, supra).
In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate.” Furthermore, paragraph 15(a) of the Rules provides that “a Panel shall 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.” Since Respondent has not submitted any evidence, the Panel will render its decision on the basis of the uncontroverted evidence supplied by Complainant.
Complainant contends that it has rights in the ATLAS COPCO Trademark and that the Disputed Domain Names are confusingly similar thereto.
In particular, Complainant contends that “Complainant was incorporated in Sweden in 1873. Complainant and its subsidiaries around the world, which collectively are known as ‘Atlas Copco' and ‘the Atlas Copco Group,' employ approximately 30,000 people worldwide. In 2009, the Atlas Copco Group's worldwide revenues were approximately 6 billion euro. The Atlas Copco Group's business includes development, manufacture, marketing, and servicing of compressed air equipment, industrial tools and assembly systems, construction equipment, and mining equipment. The Atlas Copco Group's products are sold under various brands, including the ‘Atlas Copco' brand, through a worldwide sales and service network reaching approximately one hundred and fifty countries. Complainant's primary website is located at www.atlascopco.com.”
The Panel infers substantial non-statutory or unregistered rights to the ATLAS COPCO Trademark implied by the preceding recitation of Complainant's business, and notes the statutory rights flowing from its registrations listed in Section 4, Factual Background, supra.
The Panel accepts the preceding contentions as uncontroverted, convincing and supported by the evidence, and the Panel concludes that Complainant has rights in the ATLAS COPCO Trademark.
Complainant contends that the only difference between the Disputed Domain Name <usatlascopco.com> and the ATLAS COPCO Trademark, is the geographic designator “US” and that such addition of geographic designator is insufficient to avoid confusing similarity therewith.
Complainant further contends that the only difference between the Disputed Domain Name <atlascopcp.com> and the ATLAS COPCO Trademark is a misspelling (“typosquatting”) of the latter by substituting a “p” for the “o” as the last letter, and engineered to take advantage of a one key mistype by somebody who inadvertently presses the wrong key (“p” instead of the adjacent “o” key”); and that such misspelling or “typo-squat” is insufficient to avoid confusing similarity therewith.
The Panel accepts the preceding contentions on confusing similarity as uncontroverted, convincing and supported by the evidence, and finds that the Disputed Domain Names are confusingly similar to Complainant's trademark.
The Panel concludes that Complainant has met the first requirement of the Policy.
Complainant contends that Respondent has no rights or legitimate interests in the Disputed Domain Names.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that: (1) Complainant has not affiliated, associated, licensed or authorized Respondent in any way; and (2) Respondent cannot demonstrate any of the criteria set out in paragraph 4(c) of the Policy.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that: “The websites that are associated with the Infringing Domain Names are landing pages or parking pages that consist of ‘sponsored results', ‘related searches' or links, including but not limited to sites through which products of Complainant's competitors are marketed, enabling commercial gain through a pay-per-click system.”.
Respondent has provided no arguments or evidence of rights or legitimate interests to counter Complainant's preceding contentions. By virtue of the aforedescribed legal rights of Complainant in the ATLAS COPCO Trademark, Complainant convincingly argues that Respondent has no rights or legitimate interests in the Disputed Domain Names. The Panel, especially in the absence of any Response from Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, regarding the circumstances in which Respondent may demonstrate rights or legitimate interests in the Disputed Domain Names, likely do not exist.
The Panel concludes that Complainant has met the second requirement of the Policy.
Complainant contends that Respondent registered and is using the Disputed Domain Names in bad faith.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that Respondent registered the Disputed Domain Names many decades after Complainant began using the ATLAS COPCO Trademark.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that the Disputed Domain Name <usatlascopco.com> is listed for sale on the domain name auction site “www.sedo.com”; and that Respondent has, as noted above, engaged in typosquatting with respect to the Disputed Domain Name <atlascopcp.com>.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that “…Respondent is using the Infringing Domain Names by diverting Internet users to other on-line locations (containing links to other websites including to sites that market competitors' products) for commercial gain, evidencing Respondent's bad faith” and “[t]he websites that are associated with the Infringing Domain Names are landing pages or parking pages that consist of ‘sponsored results', ‘related searches' or links, including but not limited to sites through which products of Complainant's competitors are marketed, enabling commercial gain through a pay-per-click system.” Such use is indicative of bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy.
The Panel concludes that Complainant has met the third requirement of the Policy.
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 <atlascopcp.com> and <usatlascopco.com> be transferred to Complainant.
Mark Ming-Jen Yang
Sole Panelist
Dated: April 5, 2010