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WIPO-UDRP Entscheid
D2010-0923

Fallnummer
D2010-0923
Kläger
3B Scientific GmbH
Beklagter
Ho Nim
Entscheider
Tsuru, Kiyoshi
Betroffene Domain(s)
Status
Geschlossen
Entscheidung
Transfer
Entscheidungsdatum
22.07.2010

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

3B Scientific GmbH v. Ho Nim

Case No. D2010-0923

1. The Parties

The Complainant is 3B Scientific GmbH of Hamburg, Germany, represented by Waltemathe Anwaltskanzlei - Kanzlei, Germany.

The Respondent is Ho Nim of Shanghai, Pudong, the People's Republic of China.

2. The Domain Name and Registrar

The disputed domain name <3b-scientific.com> is registered with Above.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 7, 2010. On June 7, 2010, the Center transmitted by email to Above.com, Inc. a request for Registrar verification in connection with the disputed domain name. On June 8, 2010, Above.com, Inc. 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 14, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 4, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 5, 2010.

The Center appointed Kiyoshi Tsuru as the sole panelist in this matter on July 9, 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.

4. Factual Background

The Complainant is the owner, amongst others, of the following trademark registrations:

TRADEMARK

REG. No.

Class (Int'l)

DATE OF REGISTRATION

COUNTRY

3B SCIENTIFIC

000538744

9, 16 and 41

March 8, 1999

OAMI

3B SCIENTIFIC

003827516

10

July 19, 2005

OAMI

3B SCIENTIFIC

695573

9, 16 and 41

April 6, 1998

International

3B SCIENTIFIC (TM and Design)

698140

9, 16 and 41

April 8, 1998

International

3B SCIENTIFIC

1234474

16

December 28, 1998

The People's Republic of China

3B SCIENTIFIC

809421

16

July 9, 1998

India

3B SCIENTIFIC

809119

9

July 7, 1998

India

3B SCIENTIFIC

270885

9, 19, 16 and 41

June 26, 2004

Rusian Federation

3B SCIENTIFIC

3301690

9, 16 and 35

October 2, 2007

United States of America

The disputed domain name <3b-scientific.com> was registered on October 29, 2009.

5. Parties' Contentions

A. Complainant

The Complainant contends the following:

i. Identical or Confusingly Similar

- The Complainant is the world leader in the manufacturing and marketing of didactic material for scientific, medical and patient education, mainly the anatomy market.

- That in many country all over the world the Complainant has affiliated 3B Scientific companies.

- That the trademark 3B SCIENTIFIC is represented in over 100 countries.

- The Complainant is the owner of all the trademarks mentioned above.

- That the disputed domain name incorporates Complaint's trademarks 3B SCIENTIFIC in their entirety, with the only addition of a hyphen between the term “3B” and the word “scientific”.

ii. Rights or Legitimate Interests

- That a Google search conducted by the Complainant using the Respondent's name alone as well as combined with “Shanghai” and “3B Scientific”, no results were found to show any identifiable right or legitimate interest of the Respondent in using the trademark 3B SCIENTIFIC.

- That Respondent used the disputed domain name solely in connection to a parking web site.

- That the disputed domain name provides various links to web sites where competitors of the Complainant are offering goods and services that are identical or similar to those which Complainant provides.

iii. Registered and Used in Bad Faith

- The disputed domain name is being used by the Respondent to post links associated to products that compete with those of Complainant. Hence, Internet users are likely to mistakenly believe that Complainant does not have a Web presence, therefore, interfering with Complainant's business.

- That Internet users are likely to be confused and deceived into mistakenly believing that the Respondent and/or the Complainant's competitors featured via the Respondent's links are offered, authorized, licensed or sponsored by the Complainant.

- The Respondent is offering for a sale the disputed domain name at “http://www.sedo.com”.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

In accordance with the Policy, paragraph 4(a), the Complainant must prove that:

(i) the domain name in question is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and

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

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

In the administrative proceeding, the Complainant must prove that each of these elements are present.

As the Respondent has failed to submit a Response to the Complainant's contentions, the Panel may choose to accept as true all of the allegations of the Complaint (Encyclopaedia Britannica, Inc. v. null John Zuccarini, Country Walk, WIPO Case No. D2002-0487; Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).

A. Identical or Confusingly Similar

The Complainant is the holder of several trademark registrations for 3B SCIENTIFIC in the world.

The disputed domain name <3b-scientific.com> is confusingly similar to the Complainant's trademark 3B SCIENTIFIC.

Said trademark 3B SCIENTIFIC is entirely incorporated in the domain name

<3b-scientific.com>. The addition of the hyphen does not confer a distinctive character to the disputed domain name, in relation to Complainant's trademarks. See America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; see also, Mutatis Mutandis, MoneyGram Payment Systems Inc. v. Elizabeth Muriel Hernández, WIPO Case No. D2006-1506; Princess International Sales and Service Limited and Princess Yachts International PLC v. Lambert and Turner/Lambert Turner Marine, WIPO Case No. D2002-0419 and America Online, Inc. v. Dolphin@Heart, WIPO Case No. D2000-0713.

The addition of the generic top-level domain “.com” is immaterial for purposes of the Policy. To carry into effect the similarity analysis, a panel must not take into account the generic top-level domain (gTLD) “.com”, because such gTLD has no legal significance. See Ahmanson Land Company v. Vince Curtis, WIPO Case No. D2000-0859 (citing in turn Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300, J.P. Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York v. Resource Marketing, WIPO Case No. D2000-0035); see also Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429 and Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409).

Therefore this Panel finds that the domain name is confusingly similar to the Complainant´s trademark. The first requirement of the Policy has been fulfilled.

B. Rights or Legitimate Interests

The following are examples of circumstances where a respondent may have rights or legitimate interests in a contested domain name:

(i) 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

(ii) 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

(iii) 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.” (Policy, paragraph 4(c)).

The Respondent has not submitted evidence showing its preparations to use the disputed domain name with a bona fide offering of goods or services, nor has the Respondent proven that it has been commonly known as <3b-scientific.com>, or that it is making a legitimate noncommercial or fair use of the disputed name. In fact, the web site to which the disputed domain name resolves is used just as a parking website in order to divert Internet users to web sites where competitors of the Complainant offer goods and services which are similar to those that are being offered by the Complainant and therefore said use cannot be in good faith, or legitimate or noncommercial, since parking models generate revenue for the holders of the domain names used in said models. In this case, revenue is a consequence of the confusion of Internet users looking for the goods and services which the Complainant offers for sale, and who are being misdirected to a different site offering other similar goods and services. (See Lyonnaise de Banque v. Richard J., WIPO Case No. D2006-0142 and Wagamama Limited v. Transure Enterprise Ltd., WIPO Case No. D2008-1200).

The Respondent has not contested the Complainant's statements and evidence arguing illegitimate, commercial use of the disputed domain name.

Therefore, this Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name <3b-scientific.com>. The second requirement of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

According to paragraph 4(b) of the Policy, the following circumstances shall be evidence of registration and use in bad faith:

(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 a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”

The disputed domain name is parked and linked to a web site that intentionally attracts, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant's mark 3B SCIENTIFIC, as to the source, sponsorship, affiliation or endorsement of said site, and the goods and services offered in it. This conduct clearly falls within the scope of paragraph 4 b)(iv) of the Policy and constitutes bad faith. (See Wagamama Limited v. Transure Enterprise Ltd., WIPO Case No. D2008-1200; PNY Technologies Inc. v. Caribbean Online International Ltd., WIPO Case No. D2008-0544; see also Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415.)

The disputed domain name <b3-scientific.com> is being used as a parking website where Internet users are likely to mistakenly believe that the Complainant does not have a web presence, or that the Complainant is somehow associated with its competitors, or somehow endorses its competitors' products shown via said parking web site, and therefore, interferes with the Complainant's business. Furthermore, Internet users are likely to be confused and deceived into mistakenly believing that the Respondent and their goods and services are offered, authorized, licensed, or sponsored by the Complainant or are otherwise connected, associated, or affiliated with Complainant. Diversion of prospective customers through the use of a parking web site that leads Internet users to a competitors' site constitutes bad faith. (See, mutatis mutandis, SGS Société Générale S.A. v. Inspectorate, WIPO Case No. D2000-0025 and IndyMac, Inc. v. Financial Insurance Associates, WIPO Case No. D2000-0535).

This Panel finds that the disputed domain name has been registered and is being used in bad faith, in accordance with the Policy. The third requirement of said Policy has been met.

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 name <3b-scientific.com> be transferred to the Complainant.

Kiyoshi Tsuru
Sole Panelist

Dated: July 23, 2010