The Complainant is Lyngemark Satellite AB of Helsingborg, Sweden, represented Advokatbyrån Gulliksson AB, Sweden.
The Respondent is Mohammad Sedaghat of Tehran, the Islamic Republic of Iran.
The disputed domain name <lyngsat.ir> is registered with IRNIC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on September 9, 2016. On the same date, the Center transmitted by email to IRNIC a request for registrar verification in connection with the disputed domain name. On September 11, 2016, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Hard copies of the Complaint were received by the Center on September 13, 2016.
The Center verified that the Complaint satisfied the formal requirements of the .ir Domain Name Dispute Resolution Policy (the “Policy” or “irDRP”), the Rules for .ir Domain Name Dispute Resolution Policy (the ”Rules”), and the WIPO Supplemental Rules for .ir 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 September 14, 2016. In accordance with the Rules, paragraph 5(a), the due date for Response was October 4, 2016. The Respondent did not submit any Response. Accordingly, on October 5, 2016, the Center notified the Respondent’s default.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on October 13, 2016. 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 factual information is taken from the Complaint.
Christian Lyngemark is a Swedish citizen and the Complainant is his company Lyngemark Satellite AB. The Complainant operates the website “www.lyngsat.com” that provides information on broadcasting satellites and provides links to satellite radio and television channels worldwide.
The Complainant holds the following registered European Union trade mark:
LYNGSAT (styled “LyngSat”), European Intellectual Property Office (“EUIPO”), registered June 12, 2003, registration number 2372035, classes 35, 38 and 42.
Nothing of significance is known about the Respondent except for the information provided on the registration document of the disputed domain name. The disputed domain name was registered on May 19, 2005. As discussed in more detail below, the disputed domain name previously resolved to a website with an identical layout and content to the Complainant’s website.
The Complainant contends it is the holder of the registered trademark LYNGSAT that is in use for the advertising, information and computing services specified under its registration. The trademark is constructed from parts of the name “Lyngemark” and the word “satellite” and is unique and fanciful. The Complainant says the disputed domain name <lyngsat.ir> is identical to the trademark LYNGSAT.
The Complainant further contends that the Respondent does not have rights or legitimate interests in the disputed domain name. The website to which the disputed domain name resolves is a copy of the Complainant’s own website except for advertisements and is in use for the Respondent’s commercial gain.
The Complainant also contends that the disputed domain name has been registered in bad faith or is being used in bad faith. The website to which the disputed domain name resolves is designed to copy all the content of the Complainant’s own website, including data regarding satellite frequencies and locations. The Respondent is intending to attract Internet users for commercial gain through confusion with the Complainant’s trademark. The Respondent has purported to insert a copyright notice on each page of the website, giving the impression that it is the authorised user of the Complainant’s trademark.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 4(a) of the irDRP states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered or is being used in bad faith”.
The Complainant has made the relevant assertions as required by the irDRP. The dispute is properly within the scope of the irDRP and the Panel has jurisdiction to decide the dispute.
The Complainant has produced evidence in the form of a copy of the EUIPO registration document that it is the owner of the European Union trade mark LYNGSAT. The Panel is satisfied by the evidence that the trademark LYNGSAT is a contrived, distinctive, non-dictionary word.
The disputed domain name is <lyngsat.ir>, of which the country code Top-Level Domain “.ir” may generally be disregarded in the determination of confusing similarity. What remains is “lyngsat”, which is clearly identical to the Complainant’s trademark LYNGSAT. Stylistic features incorporating font case, such as in this instance the Complainant’s use of “LyngSat”, are of no consequence in the determination of confusing similarity because domain names are not case-sensitive. The Panel finds for the Complainant under paragraph 4(a)(i) of the irDRP.
The Complainant has asserted prima facie that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and, in relation to bad faith, implies that it has not permitted the Respondent to use the Complainant’s trademark.
Paragraph 4(c) of the irDRP provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the irDRP and to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation:
“(1) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(2) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(3) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
The Respondent has not responded. The onus of proof remains with the Complainant, however the Panel is satisfied that the Respondent’s website at the disputed domain name, because it reproduces the Complainant’s trademark without permission and is a copy of the Complainant’s website, cannot qualify as a bona fide use under paragraph 4(c)(1) of the irDRP. There is no evidence that the Respondent is commonly known by the disputed domain name or that it is in use for a legitimate noncommercial or fair purpose.
The Panel finds for the Complainant under paragraph 4(a)(ii) of the irDRP.
The Complainant is required to prove under paragraph 4(a)(iii) of the irDRP that the disputed domain name has been registered or is being used in bad faith. Paragraph 4(b) of the irDRP lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of the complainant; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Complainant has produced screen captures made on September 1, 2016 of pages of its own website accessible through “www.lyngsat.com”. The Complainant’s pages provide a comprehensive resource of technical data about broadcasting satellites, including information about their coordinates, television station names and logos, geographical footprints and availability, schedules, and a wealth of other data, organised into geographical regions. The Complainant says: “The compilation of technical data, with worldwide and daily updated satellite frequency charts, is the result of a significant work effort by Christian Lyngemark, with the use of a computer program created by him”. It is evident that the compilation of these data has required considerable industry expertise.
The Complainant’s website pages carry a selection of advertisements in the margins. Most of the listed television stations appear to be in the form of clickable links.
Evidence in the form of screen captures produced by the Complainant, made on August 30, 2016, show the pages of the Respondent’s website at the disputed domain name to have content, appearance and layout effectively identical to the Complainant’s website. Differences are trivial, such as the television stations on the Respondent’s website being not necessarily all the same or in the same order as in the screen capture of the Complainant’s website, as a consequence presumably of having been copied on a different date. Some of the Respondent’s pages have brief script in another language added at the bottom of the page. The Respondent’s website also does not have advertisements in the margins. Most of the television stations appear to be listed in the form of clickable links.
The Respondent’s website prominently displays a reproduction of the Complainant’s trademark LYNGSAT in its stylised form “LyngSat”, and furthermore reproduces the Complainant’s stylised extensions of its trademark used on some pages, namely “LyngSat MAPS” and “LyngSat STREAM”. Some of the Respondent’s pages claim “Copyright By LyngSat.ir”. In the Panel’s finding upon the evidence, the Respondent has copied the Complainant’s website pages and could not therefore have been unaware of the Complainant or its website.
Accordingly, the Panel finds on the evidence and on the balance of probabilities that the Respondent has intended to attract Internet users to the website of the disputed domain name by causing at least some visitors, at least initially, to be confused into believing that the Respondent’s website legitimately reflects that of the Complainant. A finding of use of the disputed domain name in bad faith in the terms of paragraph 4(b)(iv) of the irDRP requires there to have been intended commercial gain by the Respondent. In this instance, whilst it might be implausible that the Respondent has gone to the trouble of purchasing the disputed domain name and mirroring the Complainant’s website without eventual commercial intent, the Respondent’s source of commercial gain is not entirely clear and evidence has not been adduced as to whether the referral of visitors to some of the available television stations may be remunerative for the referrer.
The provisions of paragraph 4(b) of the irDRP are without limitation, however, and registration or use of a disputed domain name in bad faith may be found alternatively to the satisfaction of the Panel. The Panel takes into account the evidence of the wholesale reproduction of the style, design and intellectual content of the Complainant’s website pages on the Respondent’s website at the disputed domain name; the Respondent’s false claim to copyright over the copied website pages; and the Respondent’s irrefutable knowledge of the Complainant, its distinctive trademark and its website as demonstrated by having copied and adapted the Complainant’s website. The Panel further takes into account that the Respondent has not attempted to refute the Complainant’s evidence or offered any explanation; that notification of the Complaint by email addressed to the postmaster at the disputed domain name was returned as undeliverable; and that the Respondent’s purported physical address was reported to be “incomplete / wrong” by the courier company attempting to deliver the hard copy of the Complaint. Having regard to the totality of the evidence and on the balance of probabilities, the Panel finds the disputed domain name to have been used in bad faith within the meaning of paragraph 4(a)(iii) of the irDRP. The Panel also finds on the totality of the evidence and on the balance of probabilities that the disputed domain name was registered for the bad faith purpose for which it has been used.
For the foregoing reasons, in accordance with paragraphs 4(i) of the irDRP and 15 of the Rules, the Panel orders that the disputed domain name <lyngsat.ir> be transferred to the Complainant.
Dr. Clive N.A. Trotman
Sole Panelist
Date: October 20, 2016