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Siemens AG v. Simens.Com [2005] GENDND 1767 (24 October 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Siemens AG v. Simens.Com

Case No. D2005-0927

1. The Parties

The Complainant is Siemens AG, Erlangen, Germany, represented by Müller Fottner Steinecke, Germany.

The Respondent is Simens.Com, Gdynsk, Poland.

2. The Domain Name and Registrar

The disputed domain name <simens.com> is registered with Tucows Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2005. On September 1, 2005, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the domain name at issue. On September 1, 2005, Tucows Inc. 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 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 September 6, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was September 26, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 27, 2005.

The Center appointed Zbyněk Loebl as the sole panelist in this matter on October 6, 2005. 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 Siemens AG, one of the world’s largest electrical engineering and electronics companies, founded more than 150 years ago.

The Complainant owns a number of trademarks comprising the word “SIEMENS”. Evidence was duly provided supporting this fact, and it is proven that the trademarks have been registered for numerous international classes such as 9-12,14,16,17,20,21,28 in countries such as Austria, Bielorussia, Ukraine, Kazakhstan, Uzbekistan and Germany.

The domain name registered by the Respondent differs only by a single letter from the trademark “SIEMENS” owned by the Complainant. The only difference is the omission of the letter “e” in “SI(E)MENS.” The Respondent’s website automatically directs to the Respondent’s website “www.megago.com”, which provides various possibilities for searching by various keywords leading to web pages containing advertisements for various other businesses.

5. Parties’ Contentions

A. Complainant

The Complainant contends the following:

The domain name <simens.com> (the “Domain Name”) is confusingly similar to the Complainant’s “SIEMENS” marks. The Domain Name contains a misspelling of the Complainant’s trademark that is predictably likely to be typed by some Internet users. The Respondent has sought to take advantage of Internet users typing an incorrect address when trying to reach the Complainant’s website www.siemens.com, a practice called “typo squatting” and discussed in a number of WIPO panel decisions (Pfizer Inc v. Peter Carrington a/k/a Party Night Inc., WIPO Case No. D2003-0622, Caesars World, Inc. v. Starnet Communications and Atlantic West Gaming Entertainment, Ltd, WIPO Case No. D2002-0066, Playboy Enterprises International Inc. v. SAND WebNames - For Sale, WIPO Case No. D2001-0094, Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO Case No. D2000-0587, Pig Improvement Company, Inc. v. Platinum Net, Inc., WIPO Case No. D2000-1594).

As a result of the misspelling described above, Internet users are directed to the Respondent’s website “www.megago.com”, which locks them into a series of automatic hyperlinks, and are likely to be confused and discouraged from further attempts to log on to the Complainant’s website. The Respondent is intentionally attempting to disrupt the business of the Complainant.

The Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not and has never been a representative or licensee of the Complainant. It is obvious that the Respondent had knowledge of the Complainant’s trademarks. The Domain Name was selected and is used by the Respondent with the intent to attract for commercial gain Internet users by trading on the fame of the Complainant’s marks, which cannot constitute a bona fide offering of goods and services.

The Respondent is not making a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademarks at issue. The Respondent does not carry on a business under the Domain Name. The Domain Name only directs to another Respondent’s website that resolves to advertisements for other businesses, including goods identical or highly similar to goods offered by the Complainant, such as electronic apparatus, personal computers, telephones and games. In Golay Buchel & Cie SA v. MegaWeb.com Inc, WIPO Case No. D2001-0829, the company MEGweb.com Inc., using the same email address as the Respondent in this case, has been found to have a long record of acquiring domain names for the purpose of using them to divert Internet traffic to the www.megago.com website and to related advertisements.

The Domain Name was registered and is used in bad faith. The Respondent’s Domain Name was registered i) because of the strong worldwide reputation of the trademarks of the Complainant, ii) in order to facilitate dilution, cybersquatting or infringement of the Complainant’s trademarks, and iii) to attract financial gain by creating a likelihood of confusion with the Complainant’s trademarks through the registration of a domain name with only a minor spelling variant.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Domain Name is confusingly similar to the Complainant’s trademarks.

The registration of domain names consisting of a misspelling of a trademark by parties unaffiliated with the trademark owner is known as “typo squatting”. Such domain names have consistently been held to be confusingly similar to their related trademarks (see for instance Encyclopaedia Britannica, Inc. v. John Zuccarini, WIPO Case No. D2000-0330 and AT&T Corp. v. Global Net 2000,WIPO Case No. D2000-1447).

The Panel finds that the Domain Name fits the description of a domain name which is confusingly similar to the SIEMENS trademark, as it differs from it by a single letter. The first element of the Policy has been proved.

B. Rights or Legitimate Interests

The Panel has carefully considered the allegation of the Complainant as to the lack of the Respondent’s rights or legitimate interests in the Domain Name. The Panel has not identified anything done by the Respondent that triggered a legitimate interest as required by paragraph 4(c) of the Policy.

In the present proceedings, there is no evidence on the record that would allow the Panel to conclude that the Respondent might have a trademark or other intellectual property rights, or general legitimate interests in the Domain Name.

On the contrary the Complainant’s evidence shows that the Domain Name is only being used to “mislead consumers” for commercial gain. The Respondent does not carry on a legitimate business using the Domain Name for the purposes of the Policy. The Domain Name only resolves to a website at “www.megago.com” which provides an Internet directory linked to web pages carrying advertising banners for various other businesses. While there is no evidence that the Respondent is making any legitimate non-commercial or fair use of the Domain Name, there is evidence that the Respondent misleadingly diverts Internet users for intended commercial gain.

The Complainant has argued that the Respondent has no legitimate interest in the Domain Name and that it is merely being used it in a deliberate attempt to exploit Internet users making typographical mistakes when searching for the Complainant’s website.

The situation above could only be interpreted as a disrupting and misleading practice resulting from the intent of the Respondent to “drive traffic to its search services”, which cannot be considered “a legitimate use of a domain name.” The following cases support this conclusion: Ticketmaster Corporation v. Woofer Smith, WIPO Case No. D2003-0346; Alta Vista Company v. O.F.E.Z. et al., WIPO Case No. D2000-1160; Expedia, Inc. v. Dotsan, WIPO Case No. D2001-1220; and CSA International v. John O. Shannon and Care Tech Industries, Inc., WIPO Case No. D2000-0071.

Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name, according to paragraph 4(a) (ii) of the Policy.

C. Registered and Used in Bad Faith

The Respondent has registered the Domain Name well after the priority dates of some of the Complainant’s trademarks attached to his complaint. It is unlikely that the Respondent devised “SIMENS”, a misspelling of “SIEMENS”, without bad faith, since it is difficult to believe that the Respondent was unaware of the Complainant’s trademarks and reputation.

The Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark, as within the meaning of paragraph 4(b)(iv) of the Policy.

Accordingly, the Panel finds that the disputed Domain Name has also been registered and is being used in bad faith.

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 Domain Name <simens.com> be transferred to the Complainant.

Zbyněk Loebl
Sole Panelist

Dated: October 24, 2005