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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

VeriSign Inc. v. Domain Admin, E-Promote

Case No. D2006-1501

1. The Parties

The Complainant is VeriSign Inc., Mountain View, California, United States of America, represented by Ballard Spahr Andrews & Ingersoll, LLP, Washington, D.C., United States of America.

The Respondent is Domain Admin, E-Promote, San Francisco, United States of America.

2. The Domain Name and Registrar

The disputed domain name <jamster.info> is registered with eNom, Inc. (the “Disputed Domain Name”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 22, 2006. On November 27, 2006, the Center transmitted by e-mail to eNom, Inc. dba Dynames.com, Inc. a request for registrar verification in connection with the domain name at issue. On December 5, 2006, eNom, Inc. dba Dynames.com, Inc. transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the Respondent. The Center verified that 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 December 8, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was December 28, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2007.

The Center appointed Douglas M. Isenberg as the sole panelist in this matter on January 31, 2007. 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.

On February 13, 2007, the Panel submitted Procedural Order No. 1 to the Center, and the Center notified the parties of same on February 15, 2007. In the order, the Panel asked the Complainant to provide further details about the status of its trademark applications and registrations. On February 25, 2007, the Complainant submitted its response to the order.

4. Factual Background

Complainant states that, “through its Jamster and Jamba subsidiaries, [it] operates one of the largest off-deck catalogs of premium mobile content, including music, graphics, games and community services, which can be ordered using a short messaging service, and is distributed to carriers and consumers worldwide.”

Complainant states that it is the owner¹ of the following U.S. trademark applications:

- JAMSTER: U.S Serial No. 76-619,714; filed November 8, 2004; priority date May 10, 2004.

- JUMSTER: U.S. Serial No. 76-617,377; filed October 22, 2004; abandoned February 14, 2006.

The first application listed above matured into a registration on December 12, 2006, (U.S. Reg. No. 3,182,229), after the Complaint was filed.

Although the second application listed above has been abandoned, this important fact was not noted by the Complainant in its Complaint but was confirmed by the Complainant in its response to the panel’s order.

Complaint provided as an exhibit a list of approximately 139 “registrations and applications for the JAMSTER Marks globally.” The exhibit did not indicate which of the filings are pending applications and which have been registered. In response to the panel’s order, the Complainant provided such a list, showing numerous registrations worldwide for the JAMSTER mark owned by Jamster International Sаrl.²

The registrations cited by Complainant are referred to hereafter as the “JAMSTER Marks.”

The Disputed Domain Name was registered on March 14, 2006.

5. Parties’ Contentions

A. Complainant

Complainant contends, in relevant part, as follows:

- The Disputed Domain Name “is identical to the Complainant’s U.S. well-established trademark and domain name.”

- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Complainant has not authorized Respondent to use the Jamster Marks; the Disputed Domain Name was registered after Complainant had established rights in the Jamster Marks; the Disputed Domain Name “does not reflect the Respondent’s common name”; and Respondent’s website is a “link farm” that “lack[s] any substantive content of its own.”

- The Disputed Domain Name has been registered and used in bad faith because Respondent is openly advertising the domain name for sale on a website associated with the domain name; Respondent is operating a “link farm” website; Complainant’s brand is well-known; and Respondent “has a history of registering domain names that are confusingly similar to the marks of others, as evidenced by his 400 domain registrations” listed in an exhibit provided by Complainant.

B. Respondent

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

6. Discussion and Findings

Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Policy, Paragraph 4(a).

A. Identical or Confusingly Similar

Based upon the trademark registrations cited by Complainant, it is obvious that Complainant has rights in the JAMSTER Mark.

As to whether the Domain Name is identical or confusingly similar to the JAMSTER Marks, the relevant comparison to be made is with the second-level portion of the Domain Name only (i.e., “jamster”), as it is well-established that the top-level domain name (i.e., “.info”) should be disregarded for this purpose. See, e.g., The Forward Association, Inc., v. Enterprises Unlimited, NAF Claim No. FA0008000095491 (“[N]either the beginning of the URL (http://www.), nor the TLD (.com) have any source indicating significance. Those designations are merely devices that every Internet site provider must use as part of its address”).

Without the need for any discussion, it is obvious that the second-level domain “jamster” is identical to Complainant’s JAMSTER Marks and, accordingly, the Panel is convinced that Complainant has proven the first element of the Policy.

B. Rights or Legitimate Interests

Complainant alleges that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because Complainant has not authorized Respondent to use the Jamster Marks; the Disputed Domain Name was registered after Complainant had established rights in the Jamster Marks; the Disputed Domain Name “does not reflect the Respondent’s common name”; and Respondent’s website is a “link farm” that “lack[s] any substantive content of its own.”

Under the Policy, “a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.” See, e.g. “WIPO Overview of WIPO Panel Views on Selected UDRP Questions,” paragraph 2.1, and cases cited therein.

Accordingly, as a result of Complainant’s allegations and without any evidence of Respondent’s rights or legitimate interests in the Domain Name, the Panel is satisfied that the Complainant has proven the second element of the Policy.

C. Registered and Used in Bad Faith

Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or the registrant 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 registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant 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 registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).

In this case, Complainant specifically alleges that bad faith exists pursuant to paragraphs 4(b)(i) and 4(b)(iv) of the Policy. With respect to paragraph 4(b)(i), Complainant argues that bad faith exists because Respondent is openly advertising the domain name for sale on a website associated with the domain name and Respondent is operating a “link farm” website. Where a domain name is offered for sale, paragraph 4(b)(i) requires that it be “for valuable consideration in excess of [the registrant’s] documented out-of-pocket costs directly related to the domain name.” In this case, the record does not contain any information indicating the price at which Respondent is attempting to sell the Disputed Domain Name, and although it could be inferred that Respondent intended to profit from a sale of the Disputed Domain Name in violation of paragraph 4(b)(i), the Panel need not make such inference, in light of the finding below.

With respect to paragraph 4(b)(iv), Complainant argues that bad faith exists because Respondent is using the Disputed Domain Name in connection with a “link farm” website that offers products and services competitive with Complainant. A printout of this website provided as an exhibit by Complainant supports this argument. Accordingly, Complainant has established the presence of bad faith. See, e.g., Wal-Mart Stores, Inc. v. Whois Privacy, Inc., WIPO Case No. D2005-0850 (“where… the links are apparently to competitive websites, especially when there is no indication that the links are not sponsored by or affiliated with the relevant trademark owner, such activity indicates bad faith under the Policy”).

Therefore, the Panel is convinced that Complainant has proven the third element of the Policy.

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 name <jamster.info> be transferred to the Complainant.

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Douglas M. Isenberg
Sole Panelist

Dated: March 1, 2007

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¹ The owner of these marks is listed on the website of the U.S. Patent and Trademark Office as Jamster International Sаrl, not VeriSign, Inc. In its complaint, Complainant states that “Complainant is VeriSign, Inc…. including its wholly owned subsidiaries Jamster International Sаrl and Jamba GmbH.”

² In its complaint, Complainant states that “Complainant is VeriSign, Inc…. including its wholly owned subsidiaries Jamster International Sаrl and Jamba GmbH.”