Westmore · UDRP DecisionF5.biz
The Panel ordered transfer of <f5.biz>. It found the domain identical to the Complainant’s registered F5 mark, found no rights or legitimate interests because the domain was used for a parking page containing trademark-related sponsored links and the Respondent offered no rebuttal, and found bad-faith use under Policy paragraph 4(b)(iv) because the domain attracted users for commercial gain through likely confusion with the F5 mark.
The timeline behind f5.biz
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The decision illustrates an exact-match trademark domain case in which trademark-targeted parking links supplied the decisive evidence for both the absence of rights or legitimate interests and bad faith under Policy paragraph 4(b)(iv). The Panel distinguished potentially permissible parking based on a genuinely generic meaning from links capitalizing on trademark value, finding the links here clearly tied to F5.
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 F5 Networks, Inc. v. Domain Administrator, c/o Whois Watchdog Case No. D2016-0043 1. The Parties The Complainant is F5 Networks, Inc. of Seattle, Washington, United States of America (“United States”), represented by Rosen Lewis, PLLC, United States. The Respondent is Domain Administrator, c/o Whois Watchdog of Shanghai, China. 2. The Domain Name and Registrar The disputed domain name <f5.biz> is registered with Tucows Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2016. On January 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 11, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 4, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 5, 2016. The Center appointed Adam Taylor as the sole panelist in this matter on February 9, 2016. 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, which trades as “F5 Networks”, is a multinational business offering application delivery technologies. The Complainant owns various trade marks for F5 including United States trade mark No. 2,427,084, registered February 6, 2001, in international classes 9 and 42. The Complainant’s main website is at “www.f5.com”. The disputed domain name was registered on October 8, 2009. The disputed domain name has been used for a parking page including sponsored links relating to the Complainant and its industry. 5. Parties’ Contentions A. Complainant The disputed domain name is identical to the Complainant’s trade mark. The Respondent is not conducting any legitimate business at the disputed domain name. Rather, it is attempting to generate Internet traffic based on the Complainant’s goodwill. The disputed domain name appears to have been registered primarily to sell to the Complainant. Alternatively the Respondent intentionally attempted to attract Internet users to its website for commercial gain with the intention of creating a likelihood of confusion with the Complainant’s marks. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has rights in the mark F5 by virtue of its registered trade mark for that term. Disregarding the domain name suffix “.biz”, the disputed domain name is identical to the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) explains the consensus view concerning the burden of proof regarding lack of rights or legitimate interests in UDRP cases: “While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP […] If the respondent does come forward with some allegations or evidence of relevant rights or legitimate interest, the panel then weighs all the evidence, with the burden of proof always remaining on the complainant.” Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark. As to paragraph 4(c)(i) of the Policy, the disputed domain name has been used for a parking page with various sponsored links referable to the Complainant and its business including “F5 LTM” (“Local Traffic Manager” – one of the Complainant’s products), “F5 Load Balancer” and “F5 Networks”. These links generate search results for some goods and services which compete with the Complainant. Such use of the disputed domain name could not of itself confer rights or legitimate interests. See paragraph 2.6 of WIPO Overview 2.0 , which states: “Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a “bona fide offering of goods or services” … especially where resulting in a connection to goods or services competitive with those of the rights holder. As an example of such permissible use, where domain names consisting of dictionary or common words or phrases support posted PPC links genuinely related to the generic meaning of the domain name at issue, this may be permissible and indeed consistent with recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on trademark value (a result that PPC page operators can achieve by suppressing PPC advertising related to the trademark value of the word or phrase). By contrast, where such links are based on trademark value, UDRP panels have tended to consider such practices generally as unfair use resulting in misleading diversion.” In this case, the advertising links are clearly related to the Complainant’s trade mark F5. There is no evidence that paragraphs 4(c)(ii) or 4(c)(iii) of the Policy apply in the circumstances of this case. The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name and there is no rebuttal by the Respondent. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith In the Panel’s view, paragraph 4(b)(iv) of the Policy applies. By using the disputed domain name, comprising the Complainant’s distinctive trade mark, in connection with a parking page with links to goods and services relating to the Complainant’s industry, the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) 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 <f5.biz> be transferred to the Complainant. Adam Taylor Sole Panelist Date: February 23, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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