Westmore · UDRP DecisionTerminal-alstom.com
The Panel ordered transfer of <terminal-alstom.com>. It found the domain confusingly similar to the Complainant’s ALSTOM trademark, found no rights or legitimate interests after the Respondent failed to rebut the Complainant’s prima facie case, and found bad-faith registration and use based on the Respondent’s presumed knowledge of ALSTOM and the use of the domain for pay-per-click links relating mainly to power services and transport.
The timeline behind terminal-alstom.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind terminal-alstom.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how a domain combining a trademark with a term connected to the trademark owner’s activities can strengthen both confusing-similarity and bad-faith findings. It also confirms that pay-per-click links related to the complainant’s business may support bad faith even where the links may have been automatically generated.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Alstom v. Andrey Suslov Case No. D2013-2172 1. The Parties The Complainant is Alstom of Levallois-Perret, France, represented by Lynde & Associés, France. The Respondent is Andrey Suslov of Bern, Switzerland. 2. The Domain Name and Registrar The disputed domain name <terminal-alstom.com> is registered with EuroDNS S.A. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2013. On December 16, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 17, 2013, the Registrar 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 January 6, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 26, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 27, 2014. The Center appointed Edoardo Fano as the sole panelist in this matter on February 4, 2014. 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 Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties. Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”. Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a response from the Respondent. The language of the proceeding is English, being the language of the Registration Agreement as per paragraph 11(a) of the Rules. 4. Factual Background The Complainant is Alstom, a French company created in 1928 and a world leader in the fields of power generation and rail infrastructures, operating in more than 100 countries, among which is Switzerland, the Respondent country. The Complainant is the owner of several trademark registrations for ALSTOM, among which: - International Trademark Registration ALSTOM, No. 706.292, registered on August 28, 1998; - Community Trademark Registration ALSTOM, No. 000948729, registered on August 8, 2001. The Complainant provided evidence in support of the above-mentioned trademark registrations. The Complainant also owns several domain names, among which are <alstom.com>, <alstom.eu>, <alstom.org>, <alstom.info>, <alstom.net>, <alstom.biz>, <alstom.mobi>. The disputed domain name <terminal-alstom. com> was registered on August 10, 2012. At the time the Complaint was filed, the disputed domain name pointed to a parking webpage with sponsored links. On January 25, 2013, with reminders on February 18, 2013 and March 27, 2013, the Complainant sent a cease and desist letter to the Respondent, without receiving any answer. 5. Parties’ Contentions A. Complainant The Complainant states that the disputed domain name <terminal-alstom.com> is identical to its trademark ALSTOM, being a combination of the generic word “terminal” and the Complainant’s trademark ALSTOM. Moreover, the Complainant affirms that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register and/or use the disputed domain name, it is not commonly known under the name “alstom” or “terminal alstom” and it is not making a noncommercial or fair use of the disputed domain name. The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. In fact, the Complainant’s trademark ALSTOM, registered in many countries around the world and very popular in Switzerland (the Respondent country), must have been known by the Respondent at the time of registering the disputed domain name. Moreover the website at the disputed domain name consists of sponsored links, creating a clear likelihood of confusion among Internet users, also because the generic word “terminal” directly refers to two of the main activities of the Complainant, namely transport and energy. B. Respondent The Respondent has made no formal substantive reply to the Complainant’s contentions and is in default. In reference to paragraphs 5(e) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward. A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences by the panel, in accordance with paragraph 14(b) of the Rules, may be drawn (see also Reuters Limited v Global Net 2000, Inc , WIPO Case No. D2000-0441 ; Microsoft Corporation v. Freak Films Oy , WIPO Case No. D2003-0109 ; SSL INTERNATIONAL PLC v. MARK FREEMAN , WIPO Case No. D2000-1080 ; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al. , WIPO Case No. D2000-0848 ; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A ., WIPO Case No. D2007-0288 ). 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed: (i) the disputed domain name 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 disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant is the owner of the trademark ALSTOM both by registration and acquired reputation and that the disputed domain name <terminal-alstom.com> is confusingly similar to the trademark ALSTOM. Regarding the addition of the generic word “terminal”, the Panel notes that it is now well established that the addition of generic terms to a domain name does not necessarily distinguish the domain name from a trademark (see , e.g. , Aventis Pharma SA., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti , WIPO Case No. D2005-0037 ; Red Bull GmbH v. Chai Larbthanasub, WIPO Case No. D2003-0709 ; America Online, Inc. v. Dolphin@Heart , WIPO Case No. D2000-0713 ). The addition of the word “terminal” does not therefore prevent the disputed domain name from being confusingly similar to the Complainant’s trademark. It is also well accepted that a generic Top-Level Domain suffix, in this case “.com”, may be ignored when assessing the similarity between a trademark and a domain name (see, e.g., VAT Holding AG v Vat.com , WIPO Case No. D2000-0607 ). The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Respondent has failed to file a Response in accordance with the Rules, paragraph 5. The Complainant in its Complaint and as set out above has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that the Respondent is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services. The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has a rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name. The Panel therefore finds that the Policy, paragraph 4(a)(ii), has been satisfied. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that “for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that [the Respondent has] registered or [has] 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 [the Respondent’s] documented out-of-pocket costs directly related to the domain name; or (ii) that [the Respondent] has 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 [the Respondent has] engaged in a pattern of such conduct; or (iii) that [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the domain name, [the Respondent had] intentionally attempted to attract, for commercial gain, Internet users to [its] 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 the Respondent’s website or location or of a product or service on [its] website or location.” As regards to the registration in bad faith of the disputed domain name, the registration of the Complainant’s trademark ALSTOM has been proved and the Panel finds that the Respondent knew or must have known the Complainant and/or its trademark, especially because the addition of the generic word “terminal” is referring to the field of activities in which the Complainant is actually operating, that is energy and transport: therefore, in this Panel’s opinion the disputed domain name was registered in bad faith. As regards the use in bad faith, the website at the disputed domain name is a page with several “pay per click” links, possibly automatically generated, mainly referring to “power service” and “transport”, among the main business activities of the Complainant. Therefore, the Panel considers that this use of the website associated with the disputed domain name must be considered in bad faith since some of the links on the website at the disputed domain name, even in the case they are automatically generated, are referring to one of the main business activities of the Complainant and are therefore likely to create confusion. See also WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”), paragraph 3.4 . All of the above suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name in order to attract, for commercial gain, Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy. The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith. The Panel therefore finds that paragraph 4(a)(iii) of the Policy 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 disputed domain name <terminal-alstom.com> be transferred to the Complainant. Edoardo Fano Sole Panelist Dated: February 8, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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