Westmore · UDRP DecisionIntelcount.com
The Panel ordered transfer of <intelcount.com> to Intel Corporation. It found the domain confusingly similar to the registered and extremely well-known INTEL mark, rejected the Respondent’s asserted people-counting business as a sham, and concluded that the Respondent lacked rights or legitimate interests. In the absence of a satisfactory explanation for selecting the domain, the Panel inferred registration and use either primarily for sale to the Complainant or otherwise to profit from likely confusion with the INTEL mark.
The timeline behind intelcount.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 intelcount.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that formal registration of a company bearing the disputed name does not by itself establish UDRP rights or legitimate interests, particularly when the company was formed after the domain registration and the claimed business lacks credible operational evidence. It also shows the evidentiary importance of responding to a procedural order with ordinary commercial records rather than isolated, unbranded photographs.
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 Intel Corporation v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org / Bejo PT Intelcount Indonesia Case No. D2014-0760 1. The Parties The Complainant is Intel Corporation of Santa Clara, California, United States of America (“USA”), represented by Ranjan Narula Associates, India. The Respondent is Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org of Nobby Beach, Queensland, Australia/ Bejo, PT Intelcount Indonesia of Jakarta, Indonesia, represented by Hendrik Haryanto Tjhin, Indonesia. 2. The Domain Name and Registrar The disputed domain name <intelcount.com> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 9, 2014, identifying the Respondent as Domain Admin Privacy Protection Service INC d/b/a PrivacyProtect.org. The Center transmitted its request for registrar verification to the Registrar the same day. The Registrar replied on May 10, 2014, stating that it had not received a copy of the Complaint; that it was the Registrar of the Domain Name; that the named Respondent was not the current registrant, but merely the name of its privacy protection service; that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name; that the Domain Name would expire on January 4, 2015; that the Domain Name had been placed on Registrar lock; that the registration agreement was in English; and that the Domain Name was registered on January 4, 2012. The Registrar provided the name of the registrant and contact details held by it in respect of the Domain Name. The Center advised the Complainant on May 13, 2014, of the information provided by the Registrar as to the identity of the registrant and invited the Complainant to file an amendment to the Complaint in the light of this information. The Complainant filed an amended Complaint and amended Exhibit 1 thereto on May 16, 2014. The amended Complaint identified the Respondent as Bejo PT Intelcount Indonesia. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 21, 2014. In accordance with paragraph 5(a) of the Rules, the due date for Response was June 10, 2014. The Respondent sent an email to the Center on May 21, 2014 stating that the Domain Name was disputed and asking how to claim it back. The Center replied on May 23, 2014, informing the Respondent that its Response was due on June 10, 2014, and providing links to the UDRP, the Rules, the Supplemental Rules, and its model response on its website. The Respondent sent a further email to the Center on May 25, 2014, stating that it could not send and receive with its corporate email and asking the Center to send the Complaint document. The Respondent subsequently filed a Response with the Center on June 1, 2014, confirming that it had received notification of the Complaint by courier on May 26, 2014, and email on May 27, 2014. The Center appointed Jonathan Turner as the sole panelist in this matter on June 16, 2014. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the case file, the Panel is satisfied that the amended Complaint complied with applicable formal requirements, was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. The Panel made a Procedural Order on June 27, 2014, requesting the Parties to provide further information by July 7, 2014, and extending the date to forward its decision to the Center to July 14, 2014. The Parties provided further information in response to this Order on July 7, 2014. 4. Factual Background The Complainant is the world’s largest manufacturer of silicon chips. The Complainant’s products include microprocessors, chipsets, motherboards, flash memory, connectivity products and network processors. The Complainant has manufactured semiconductor memory products in Indonesia since 1986. The Complainant has used the mark INTEL in relation to its products since it was incorporated in 1968, in many cases followed by a further word of a descriptive character, such as INTEL PRO, INTEL CORE or INTEL INSIDE. It has registered numerous trademarks in countries around the world for INTEL and for combinations of INTEL and other words, such as INTEL INSIDE. The Complainant’s registrations include the mark INTEL in Indonesia. The Complainant’s INTEL mark is one of the most valuable and best-known brands in the world. The Respondent registered the Domain Name on January 4, 2012. A company was registered under the name PT. INTELCOUNT INDONESIA on July 2, 2012. Indonesian lawyers acting for the Complainant sent a letter to this company on December 14, 2012, addressed to its director, Mr H[…], asking it to cease using the name “IntelCount”. This letter did not refer to the Domain Name, although it mentioned a reference to “INTELIX” software on the company’s website. The letter was sent to the address stated on the website located by the Domain Name at “www.intelcount.com”. Mr H[…] replied on behalf of the company on December 24, 2012, noting that the Complainant’s lawyers had visited its website and stating that it was duly registered under the name “Intelcount Indonesia” in Indonesia. The letter further stated that the company was engaged in providing consulting and application services, which required devices supplied by foreign companies, and did not produce these devices itself. The Complainant’s lawyers reiterated the Complainant’s objections to the name “IntelCount” in letters to the company dated January 14, 2013, May 22, 2013, October 24, 2013, and December 11, 2013. None of these letters referred specifically to the Domain Name. No reply to these letters was received by the Complainant. As at May 5, 2014, the Domain Name located a website which purported to promote Intelcount as a business involved in counting people at shopping centers. The Panel has viewed the website currently located by the Domain Name and notes that the primary language is Indonesian with translations into other languages being provided using the Google translation service. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its INTEL mark, observing that the Domain Name incorporates the whole of this mark. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name, since the Respondent must have known of the Complainant’s mark when it registered the Domain Name and must have chosen the Domain Name with the intention of confusing Internet users. The Complainant points out that the Respondent’s business activities are in the IT sector, as are the Complainant’s. The Complainant adds that the Respondent is not commonly known by the Domain Name or any name containing its INTEL mark. The Complainant alleges that the Domain Name was registered and is being used in bad faith. According to the Complainant, the Respondent chose the Domain Name to derive unfair monetary advantage from confusion with the Complainant’s mark. The Complainant requests a decision that the Domain Name be transferred to it. In response to the Panel’s Procedural Order, requesting it to state whether it contends that the Respondent has or has not carried on any real business in the field of counting people in shopping malls and retail outlets and to provide any evidence in support of its contention on this point, the Complainant states that it can be concluded that the Respondent has not carried on any such business. The Complainant notes that the Respondent had not provided any details or evidence of business in this field; that before and after filing the Complaint, the Respondent seemed to be changing its street and email addresses; and that there are no physical signs of the Respondent’s business at the address indicated in the contact details for the business provided on the website located by the Domain Name. B. Respondent The Respondent states that the Domain Name stands for “Intelligent Counting” and notes that there are many domain names that start with “Intel”. It maintains that the Domain Name is not identical or confusingly similar to the Complainant’s INTEL mark. The Respondent contends that it has a right or legitimate interest in the Domain Name or a corresponding name, since its registered company name is PT Intelcount Indonesia. The Respondent denies bad faith. It states that it sells “services of people counting solutions for stores and shopping malls” and that it does not sell products or services similar to the Complainant’s. It denies directing the Complainant’s customers to buy its products of services. In response to the Panel’s Procedural Order, the Respondent affirms that it has “been doing the real business of people counting solution for shopping malls and retails” and attaches photographs of what it describes as “our installation camera for counting people at our shopping mall”. 6. Discussion and Findings In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn. A. Identical or Confusingly Similar The Panel finds that the Complainant has registered rights in the mark INTEL. The Panel further finds that the Domain Name is confusingly similar to this mark. This mark has been extensively used in conjunction with a subsequent descriptive indication, such as “pro”, “core” or “inside”. Furthermore, the word “count” describes a function frequently carried out by electronic components such as those made and sold by the Complainant. In these circumstances the Panel considers that many Internet users would take the combination of “intel” and “count” in the Domain Name as referring to the Complainant or a product supplied by the Complainant. The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests In accordance with paragraph 4(c)(i) of the UDRP, a respondent’s use of or demonstrable preparation to use a domain name or a corresponding name in connection with a bona fide offering of goods or services before any notice of a dispute demonstrates its right or legitimate interest in that domain name for the purpose of the Policy. It is therefore necessary to determine whether the Respondent has used or prepared to use the name “INTELCOUNT” and the Domain Name for bona fide services in the field of counting people in shopping malls and retail outlets, as it claims. Having reviewed the available evidence, the Panel has concluded on the balance of probabilities that the Respondent’s purported business in this field is a sham. The Panel notes in particular the following matters: (a) The Respondent’s explanation for the choice of the name “INTELCOUNT” is somewhat implausible. The automatic counting of people entering a shopping mall or retail outlet is hardly intelligent. It is also odd for a business which communicates primarily in Indonesian to choose such an English-based name. (b) The Respondent’s website does not appear to be the website of a functioning business, even after allowances are made for the deficiency of automatic translation. (c) The Respondent provided no real evidence of the operation of such a business in response to the Panel’s Procedural Order. It merely provided photographs of a single device fixed on a ceiling without any mention of “INTELCOUNT”. Furthermore it described this as “our installation camera for counting people at our shopping mall”, suggesting that it has not provided any service in this regard to third parties. It provided no invoices, purchase orders, advertising material, packaging, accounts or any other paraphernalia of a functioning business. (d) The Complainant found no physical signs of the Respondent’s purported business at the address provided on its website. (e) The identity of the registrant of the Domain Name was hidden by a privacy service. While the use of a privacy service does not in itself amount to bad faith, it does suggest that the registrant is not seeking to promote a genuine business using that domain name. Furthermore, the street and email addresses provided for the registrant and other contacts in the registration of the Domain Name appear to have been inaccurate. These matters do not appear to be explicable on the basis that the Respondent has only just commenced preparations to carry on the business, since the Domain Name was registered in January 2012, the company name was registered in July 2012, and the Respondent claimed to be carrying on this business in its letter to the Complainant in December 2012. In all the circumstances, the Panel finds that the Respondent has not used or made demonstrable preparations to use the Domain Name or a corresponding name for a bona fide offering of goods or services. The Panel further finds that the Respondent is not commonly known by the Domain Name. Nor has the Respondent made legitimate noncommercial or fair use of the Domain Name. On the material in the file, there is no other basis on which the Respondent can claim any right or legitimate interest in the Domain Name. The Panel concludes that the Respondent has no such right or interest, and that the second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith For the reasons set out above, the Panel rejects the Respondent’s explanation for registering the Domain Name that it refers to a business of counting people in shopping malls or retail outlets. In the absence of any other satisfactory explanation for the registration of the Domain Name despite the likelihood of confusion with the Complainant’s extremely well-known mark, the Panel infers that it was either registered primarily for the purpose of sale to the Complainant for valuable consideration, or in some other way to profit from the likelihood of confusion with the Complainant’s mark. The Panel accordingly concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied. 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 <intelcount.com> be transferred to the Complainant. Jonathan Turner Sole Panelist Date: July 12, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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