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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Dr. Ing. h.c. F. Porsche AG v. feng feng / no

Case No. D2006-0257

 

1. The Parties

The Complainant is Dr. Ing. h.c. F. Porsche AG, Stuttgart, Germany, represented by Lichtenstein, Kцrner & Partners, Germany.

The Respondent is feng feng / no, Xian Shaanxi, China.

 

2. The Domain Names and Registrar

The disputed domain names <porsche-china.com> and <porschechina.com> are registered with Dotster, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2006. On March 2, 2006, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain names at issue. On March 2, 2006, Dotster, 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, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 10, 2006. The Center verified that the Complaint together with the amendment to 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 March 14, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 3, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 5, 2006.

The Center appointed Kristiina Harenko as the sole panelist in this matter on April 18, 2006. 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

According to the extracts from trademark registers of various countries the Complainant is the owner of registered trademark PORSCHE in several countries including also China. All the registered PORSCHE trademarks which the Complainant has referred to are registered prior to year 2002.

The disputed domain names <porsche-china.com> and <porschechina.com> were registered on March 17, 2002.

 

5. Parties’ Contentions

A. Complainant

The Complainant has been a maker of sports cars for more than half a century, utilizing “Porsche” as the prominent and distinctive part in its trade name and it owns numerous trademarks consisting of or incorporating the word “Porsche”. Trademark and trade name “Porsche” are known throughout the world with a reputation for high quality and performance.

The Complainant operates its principal web site at “www.porsche.com” which opens the gate to various web sites tending to the needs of Internet users from specific countries or regions. The page serving users from China is located at “www.porsche.com.hk”.

The Complainant contends that the fictional name “no” and the name given as the administrative contact “feng, feng” are just disguise for Mr. Michael Zhang (Buyeah Group Inc. Domains for sale) who is active in the cybersquatting business, intended to obscure the relationship between Mr. Zhang and the disputed domain names.

Until very recently the disputed domain names were redirected to Mr. Zhang’s website <buyeah.com>. The registrant of <buyeah.com> is “Buyeah Group Inc. Domains for sale. Michael Zhang”. Buyeah Group Inc. is a registered corporation in the state of New York and the company “Domains for sale” Mr. Zhang is offering domain names for sale or rent. In a special page at this website he offers dozens of domain names for sale, among them names incorporating famous car brands and names of internationally known companies. The Complainant lists among others <fordchina.com>, <jtbchina.com>, <mitsubishiusa.net>, <nissanusa.info>, <toshibachina.com> and <yamahachina.com>. The domain names are party used to redirect to “www.buyeah.com”, partly for other purposes.

The Whois records regarding <yamahachina.com> are exactly the same as for the disputed domain names, including “feng, feng” the administrative contact. This domain name still redirects to the website of <byeah.com> like the disputed domain names earlier did.

The Complainant claims that evidence for Mr. Zhang being the true owner of the disputed domain name is also the e-mail address cocom@126.com given for “feng, feng”, the administrative contact. This address appears in a message board at <buyeah.com> and is identified as the e-mail address of “Coco”, Mr. Zhang’s wife. In a section with information on Mr. Zhang’s family “Fen Feng” is identified as Mr. Zhang’s mother.

The Complainant contends that shortly after the disputed domain names were discovered and cease and desist e-mail sent to the Respondent the website to which the contested domain names resolved was changed in order to further obscure Mr. Zhang’s involvement. Mr. Zhang apparently has rented the domain name out to Ctrip Co, Ltd from Shanghai, China and the disputed domain names redirect to the website “www.ctrip.com” offering commercial travel services.

On October 21, 2005, the Complainant sent a cease and desist letter to Respondent by e-mail demanding transfer of the domain name. No reply was received from Respondent.

The Complainant contends that the disputed domain names are confusingly similar to Complainant’s trademark “Porsche” (Paragraph 4(a)(i) of the Policy). Administrative panels have held constantly that adding geographical indications to a trademark in a domain name does not prevent confusion (cf. Dr. Ing. h.c. F. Porsche AG v. Simon Postles, WIPO Case No. D2001-1360, <porschecanada.co>; Dr. Ing. h.c. F. Porsche AG v. MACROS-TELECOM corp., WIPO Case No. D2001-0993, <porsche-usa.com>; Dr. Ing. h.c. F. Porsche AG v. Lorna Kang, WIPO Case No. D2004-0331, <porscheusa.com>; Dr. Ing. h.c. F. Porsche AG Rojeen Rayaneh, WIPO Case No. D2004-0488, <porsche-me.com>; and Dr. Ing. h.c. F. Porsche AG v. Hakan Melek, WIPO Case No. D2004-0982, <porscheturkiye.com>.)

The Complainant further contends that Respondent has no right or legitimate interest in respect of the domain name (Paragraph 4(a)(ii) of the Policy). According to the Complainant there is not and has never been a business relationship between the Complainant and the Respondent. Neither is there a use nor are there any preparations to use the domain name with a bona fide offering of goods or services. The Respondent is not commonly known by the domain name and the Respondent is not making a non-commercial use of the domain name (Paragraph 4(c)(i)(ii)(iii) of the Policy).

The Complainant contends that the Respondent has registered and used the disputed domain names in bad faith (Paragraph 4(a)(iii) of the Policy). The Complainant argues that under no conceivable circumstances the Respondent could have acted in good faith. The Respondent has no legitimate interest in registering and using a domain name which so closely resembles a well-known and prestigious trademark. The Respondent could not have been unaware of the Complainant’s trademark which is since decades among the best known trademarks in the world. The Respondent has registered a number of well-known brands as a domain name combined, like the disputed domain name, with geographical indication.

The Complainant contends that the Respondent registered the domain name to sell it to the Complainant at a price exceeding registration costs. Evidence for that is the existence of a page on Respondent’s web site where numerous similar domain names are offered for sale (Paragraph 4(b)(i) of the Policy).

The Respondent has registered the domain name in order to prevent the Complainant from reflecting the mark in a corresponding domain name and the Respondent has engaged in a pattern of such conduct, having registered numerous similar domain names (Paragraph 4(b)(ii) of the Policy).

In addition, the Complainant claims that the Respondent is using the disputed domain names to catch users for a commercial website where travel services are offered and for which he presumably receives a valuable compensation (Paragraph 4(b)(iv) of the Policy).

Finally, the Complainant argues that the Respondent has provided false Whois information to the registrar, naming a registrant that does not exist, which also indicates bad faith on the part of the Respondent (cf. Telstra Corporation Limited v. Nuclear Marshmallows WIPO Case No. D2000-0003).

B. Respondent

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

 

6. Discussion and Findings

Paragraph 15 of the Rules prescribes that the Panel shall decide a Complaint on the basis of the statements made and documents submitted and in accordance with the Policy, the Rules and any principles of law that it deems applicable.

In the case of default by a party, Paragraph 14 of the Rules prescribes that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or a requirement under, these rules, the Panel shall draw such inferences therefrom as it considers appropriate. In this case the Respondent has not submitted any Response and has consequently not, despite the opportunity given, contested any of the contentions made by the Complainant. The Panel will therefore consider the case on the basis of the Complaint and the documents available to support the contentions.

As confirmed by the Registrar Verification, the Policy is applicable to this case. Consequently, the Respondent is required to submit to a mandatory administrative proceeding as now initiated in respect of the domain names at issue.

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

- that the domain names registered by the Respondent are identical or confusingly similar to a trademark or a service mark in which the Complainant has rights

- that the Respondent has no rights or legitimate interests in the domain names, and

- that the domain names have been registered and are being used in bad faith.

A. Identical or Confusingly Similar

According to Paragraph 4(a)(i) of the Policy the Complainant has to prove that the domain names at issue are identical or confusingly similar to a trademark or a service mark in which the Complainant has rights.

The Complainant is the owner of registered trademarks PORSCHE. Adding geographical indications or a hyphen to a trademark in a domain name does not prevent confusion. The suffix ‘.com’ is also insignificant when assessing the confusing similarity. Therefore the Panel concludes that the disputed domain names <porsche-china.com> and <porschechina.com> are confusingly similar to the Complainant’s protected trademark PORSCHE.

B. Rights or Legitimate Interests

In this respect the Complainant has, according to Paragraph 4(a)(ii) of the Policy, to prove that Respondent has no rights or legitimate interests in the domain names at issue.

The Complainant has contended that there is no and that there has never been a business relationship between the Complainant and the Respondent. Neither is there use nor are there preparations showing the use of the domain names with a bona fide offering of goods or services. The Respondent is not commonly known by the domain names. Respondent is not making noncommercial use of the domain names.

To support its contentions in this respect, the Complainant has invoked a number of circumstances, supported by documentary evidence. Despite the opportunity given, the Respondent has not contested or commented upon the contentions by the Complainant.

On the basis of these circumstances the Panel is satisfied that the evidence submitted by Complainant sufficiently supports its contention that Respondent has no rights or legitimate interests in the domain names at issue.

C. Registered and Used in Bad Faith

In accordance with Paragraph 4(a)(iii) of the Policy, the Complainant has to prove that the domain names have been registered and are being used in bad faith. Paragraph 4(b) sets out circumstances which in particular but without limitation can, if found by the Panel to be present, be considered as evidence of registration and use of a domain name in bad faith.

The Complainant contends that:

- The Respondent has registered the domain names at issue with the intent to prevent the Complainant from reflecting the mark in a corresponding domain name and the Respondent has engaged in a pattern of such conduct, having registered numerous domain names, including third parties’ trademarks together with a geographical indication.

- Respondent has no legitimate interest in registering and using a domain name which so closely resembles a well-known and prestigious trademark. Respondent could not have been unaware of Complainant’s trademarks.

- The Respondent registered the domain name to sell it to the Complainant at a price exceeding registration costs.

- The Respondent is using the disputed domain names to lure Internet users to a commercial website where travel services are offered and for which he presumably receives a financial compensation.

- The Respondent has given false Whois information to the registrar.

The Panel notes that the websites associated with the disputed domain names are directed to commercial websites unrelated to the Complainant’s products and services. Considering the goodwill of the Complainant’s trademark, the Panel makes a reasonable inference that the domain names were registered to attract internet users to the Respondent’s website for the Respondent’s own commercial gain.

The Respondent has not, despite the opportunity given, contested the Complainant’s contentions. On the basis of these circumstances the Panel is satisfied that the evidence submitted by the Complainant sufficiently supports a finding that the domain names were registered and are being used in bad faith.

 

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 domain names <porsche-china.com> and <porschechina.com> be transferred to the Complainant.

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Kristiina Harenko
Sole Panelist

Dated: May 2, 2006