Westmore · UDRP DecisionAbbswiss.com
The Panel ordered transfer of <abbswiss.com>. It found the domain confusingly similar to the Complainant’s widely reputed ABB mark because it incorporated ABB as its dominant element and added only the geographic term “swiss.” The Complainant established a prima facie absence of rights or legitimate interests, which the defaulting Respondent did not rebut. Bad faith registration and use were found based on the ABB mark’s worldwide reputation, the Respondent’s inferred awareness of that mark, and use of the domain to redirect Internet users to the Complainant’s own website, thereby increasing confusion over authorization or control.
The timeline behind abbswiss.com
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The decision illustrates how adding a geographic term closely associated with a trademark owner may increase, rather than reduce, confusing similarity. It also treats redirection to the trademark owner’s genuine website as potentially deceptive because users may infer that the independently registered domain is authorized or controlled by the owner.
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 ABB Asea Brown Boveri Ltd. v. Mike Bulliman Case No. D2015-1407 1. The Parties The Complainant is ABB Asea Brown Boveri Ltd. of Zurich, Switzerland, represented by IPQ IP Specialists AB, Sweden. The Respondent is Mike Bulliman of Zurich, Switzerland. 2. The Domain Name and Registrar The disputed domain name <abbswiss.com> is registered with Realtime Register B.V. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2015. On August 10, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 11, 2015, 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 August 20, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was September 9, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 11, 2015. The Center appointed Philippe Gilliéron as the sole panelist in this matter on September 25, 2015. 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, seated in Zurich, is the result of the merger in 1988 of the Swedish “Asea AB” and the Swiss “BBC Brown Boveri AG” companies. It employs 140,000 people worldwide, operates in the power and automation technology area in approximately 100 countries and has revenues of almost USD 40 billions. The Complainant owns numerous trademarks consisting in whole or in part of the acronym ABB, notably IR 781902 registered on March 27, 2002 with a priority date as of October 5, 2001 resulting from the Swiss registration P-496792 under classes 1-4, 6-12, 14, 16-21, 25, 26, 28, 35-45. The ABB trademark has been listed seventh most valuable trademark in Switzerland on Interbrand’s list in 2014 and 2015, and the most valuable one in the B2B arena. In 2013, the Complainant had the most patent filings of all Swiss companies and notably won in early 2014 the Zayed award as a global sustainability leader. The Complainant holds numerous domain names under several generic Top-Level Domain (“gTLDs”) and country code Top-Level Domains (“ccTLDs”), notably the domain name <abb.com>, under which the Complainant has an extensive website. The Respondent registered the disputed domain name <abbswiss.com> on October 2, 2014. On July 23, 2015, the Complainant sent a cease and desist letter to the Respondent to the “[…]@abbswiss.com” address which resulted in a permanent delivery failure message. Another attempt to the address “[…]@zowsoft.com” led to the same result. 5. Parties’ Contentions A. Complainant The Complainant first argues that the disputed domain name, which comprises the term “abb”, is confusingly similar to its ABB trademarks and that the addition of a geographic term such as “swiss” does not exclude the likelihood of confusion. The Complainant then asserts that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent does not have any registered trademark corresponding to the disputed domain name, has not been authorized by the Complainant to use the ABB trademarks and has never had a business relationship with the Complainant. The Complainant finally affirms that its ABB trademarks are well established trademarks. Using the Complainant’s contact details in the WhoIs database and redirecting the disputed domain name to the Complainant’s own website are clear evidence of the Respondent’s bad faith as it only serves to increase customer confusion that the disputed domain name is somehow licensed or controlled by the Complainant. The Complainant considers that the Respondent could have no other reason in registering the disputed domain name than to profit from it in some way. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs this Panel to “[…] decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred: (i) The disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or a 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 According to the Policy, paragraph 4(a)(i), the Complainant has to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant proves to be the holder of numerous verbal trademarks throughout the world consisting of the acronym ABB. There is no doubt, in the Panel’s opinion, that the ABB mark enjoys a wide reputation, as evidenced by the Complainant. UDRP panels widely agree that incorporating a trademark into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark for purpose of the Policy (see, e.g. , Uniroyal Engineered Products, Inc. v. Nauga Network Services , WIPO Case No. D2000-0503 ; Thaigem Global Marketing Limited v. Sanchai Aree , WIPO Case No. D2002-0358 ; and F. Hoffmann-La Roche AG v. Relish Entreprises, WIPO Case No. D2007-1629 ). This is all the more true when the inserted trademark consists of the dominant part of the disputed domain name, and that the added elements are merely descriptive. Such happens to be the case here. The addition of a geographical term such as “swiss” is merely descriptive and does not exclude the confusing similarity (see, among others: Playboy Entreprises International, Inc. v. Zeynel Demirtas , WIPO Case No. D2007-0768 ; Inter-IKEA Systems B.V. v. Evezon Co. Ltd , WIPO Case No. D2000-0437 ; Dell Computer Corporation v. MTO C.A. and Diabetes Education Long Life , WIPO Case No. D2002-0363 ). To the contrary, it rather strengthens the confusing similarity by making Internet users mistakenly believe that the website might be the Complainant’s official website in Switzerland, where the Complainant is seated. As a result, the Panel considers paragraph 4(a)(i) of the Policy to be satisfied. B. Rights or Legitimate Interests According to the Policy, paragraph 4(a)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name. As the panel stated in Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 , demonstrating that the respondent has no rights or legitimate interests in the domain name “would require complainant to prove a negative, a difficult, if not impossible, task”. Thus, in that decision, the panel opined that “[w]here a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. Following that decision, subsequent UDRP panels developed a consensual view that it is deemed sufficient for a complainant to make a prima facie case that the respondent lacks rights or legitimate interests in a domain name. Once a prima facie case has been made, it is the respondent’s burden to demonstrate its rights or legitimate interests. If it fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (see, e.g. , paragraph 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview 2.0”)). In the present case, the Complainant is the owner of numerous ABB trademarks. The Complainant has no business or other relationships with the Respondent. The Complainant thus has made a prima facie case showing that the Respondent has no rights or legitimate interests in the disputed domain name. On its side, the Respondent has not answered to the Complaint. Considering the absence of a Response and the fact that the Respondent is neither commonly known by the disputed domain name, nor has made a legitimate noncommercial or fair use of the disputed domain name, the Panel finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name. Consequently, in light of the above, the Panel considers paragraph 4(a)(ii) of the Policy to be fulfilled. C. Registered and Used in Bad Faith For a complaint to succeed, a panel must be satisfied that a domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)). Bad faith requires the Respondent to be aware of the Complainant’s trademarks. In the present case, the Complainant is the owner of numerous ABB trademarks, which enjoy a worldwide reputation. Considering the worldwide reputation of the ABB mark, the Panel finds it hard to believe that the Respondent would have chosen and registered the disputed domain name <abbswiss.com> in good faith, without having been aware of the ABB trademarks. The Respondent, having neglected to participate in these proceedings, did not bring any evidence to support such a choice; such evidence does not result from the file, and the Respondent has to bear the consequences of its default on that regard. There is no doubt in the Panel’s opinion that the Respondent was very well aware of the Complainant’s trademarks, and that the disputed domain name has been registered, and is being used to create a likelihood of confusion and leading Internet users to believe that the Respondent’s website is linked to the Complainant. As stated by other panels, the use of the disputed domain name to redirect to the Complainant’s own website only serves to increase customer confusion that the disputed domain name is somehow licensed or controlled by the Complainant (see e.g. AXA S.A., AXA Investment Managers S.A. et al. v. Domains By Proxy, Inc. / Adam Long, WIPO Case No. D2009-0452 ). The Panel shares the view of Bulmers Limited, Wm. Manager Limited v. Piri Jaroubek N.A., WIPO Case No. D2009-1369 , according to which “this is one of those cases where […] there is no conceivable non-infringing use to which the Respondent could put the disputed domain name”. Consequently, the Panel is of the opinion that the disputed domain name <abbswiss.com> has been registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy. 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 disputed domain name <abbswiss.com> be transferred to the Complainant. Philippe Gilliéron Sole Panelist Date: September 28, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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