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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Eos Systems Inc. v. Keyword Marketing, Inc.

Case No. D2007-0905

 

1. The Parties

Complainant is Eos Systems Inc., Vancouver, British Columbia, Canada, represented by Darby & Darby, PC, United States of America.

Respondent is Keyword Marketing, Inc., Charlestown, West Indies, Saint Kitts and Nevis.

2. The Domain Name and Registrar

The disputed domain name <photomodeller.com> is registered with DomainDoorman, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 20, 2007. On June 21, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On June 22, 2007, DomainDoorman, LLC transmitted by email to the Center its verification response confirming that 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”), 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 Respondent of the Complaint, and the proceedings commenced on June 29, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 19, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 20, 2007.

The Center appointed Sandra A. Sellers as the sole panelist in this matter on July 30, 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.

4. Factual Background

Complainant has been using the name and mark PHOTOMODELER continuously in commerce since December 23, 1993, for use with computer software and user manuals sold therewith for the creation of multi-dimensional geometric databases. Complainant owns a US federal trademark registration for the PHOTOMODELER mark, which was issued on November 7, 1995.

Since January 13, 1995, Complainant has owned and operated a website, “www.photomodeler.com”, which incorporates Complainant’s registered mark PHOTOMODELER. The site states that “PhotoModeler photogrammetry software provides image-based modeling, for accurate measurement and 3D models in accident reconstruction, engineering, architecture and more”, and features information on various applications of Complainant’s software.

Respondent registered <photomodeller.com> on December 7, 2005. The site’s home page consists solely of links to other sites, which offer software and services that compete with Complainant’s PHOTOMODELER software, such as Photogrammetry Software, 3D Photogrammetry, Architectural Photogrammetry, Forensic Photogrammetry, etc.

 

5. Parties’ Contentions

A. Complainant

Complainant contends that Complainant has rights in the PHOTOMODELER mark; that the disputed domain name contains Complainant’s mark in its entirety and is confusingly similar to Complainant’s mark; that Respondent has not been granted any rights in Complainant’s mark and has no other rights or legitimate interests; and that Respondent registered and uses the domain name in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

Pursuant to paragraphs 4(a)(i) to (iii) of the Policy, for Complainant to prevail and have the disputed domain name transferred to it, Complainant must show that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in the disputed domain name; and

(iii) the Respondent has registered and is using the disputed domain name in bad faith.

A. Identical or Confusingly Similar

The Panel finds that Complainant has rights in the mark PHOTOMODELER, based on its US federal registration.

The disputed domain name, <photomodeller.com>, contains the Complainant’s mark in its entirety. The only difference is that the disputed domain name contains a duplicative letter, which makes the disputed domain name a misspelling of the Complainant’s mark. Numerous panels previously have held that domain names with such minor alterations are identical or confusingly similar to the marks in which the Complainants have had rights. See, e.g, American Home Products Corporation v. Privateer Ltd., WIPO Case No. D2000-0455 (domain name with extra “d” in “addvil” found confusingly similar to “advil” mark.)

The Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s registered mark, and that Complainant meets the first criterion of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Respondent has not been granted any rights by Complainant to use Complainant’s PHOTOMODELER mark, which is contained in its entirety in the disputed domain name. On the evidence before the Panel, Respondent does not appear to make any legitimate non-commercial or fair use of the domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name. Respondent has not rebutted this.

Based on the foregoing and considering Respondent’s use of the domain name explained further below under 6.C., the Panel finds that Respondent does not have any rights or legitimate interests in respect of the domain name and that Complainant meets the second criterion of paragraph 4(a) of the Policy

C. Registered and Used in Bad Faith

Complainant has used the PHOTOMODELER mark since December 23, 1993, and has owned and operated its website since January 13, 1995, with respect to computer software and user manuals sold therewith for the creation of multi-dimensional geometric databases. Respondent registered <photomodeller.com> on December 7, 2005, well after Complainant’s trademark registration and website registration. Respondent’s site’s home page consists solely of links to other sites, which offer software and services that compete with Complainant’s photomodeler software.

Based on these facts, this Panel infers that Respondent was aware of Complainant’s mark when Respondent registered the disputed domain name. See, e.g., Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, in which the panel found it “inevitable that Respondent registered the domain names in full knowledge of Complainant’s rights and interests.”

Further, Respondent’s home page contains nothing but links to other sites, all of which are related to or competitive with Complainant’s products. Respondent has used the disputed domain name to direct visitors to other vendors. It is likely that Respondent receives “click-through” revenue by directing those visitors to the other websites. From its earliest decisions, WIPO panels have found that, under similar circumstances, receiving click-through revenue by directing visitors to other web sites may constitute bad faith. See Nokia Corporation v. IBCC a/k/a Nokiagirls.com, WIPO Case No. D2000-0102. This Panel finds that Respondent has used the disputed domain name to attract Internet users for commercial gain and with the intent to misleadingly divert consumers to other websites.

Finally, Respondent’s bad faith is also evidenced in its pattern of abusive registration, infringement, and cybersquatting. Domain names owned by Respondent incorporating famous and distinctive marks have recently been the subject of at least seven UDRP proceedings in which the panels ordered Respondent to transfer the disputed domain name to the complainant. See Sanofi-Aventis and Aventis, Inc. v. Web Advertising Corp. and Keyword Marketing, Inc, WIPO Case. No. D2007-0678; Education Testing Service v. Caribbean Online International Ltd., Keyword Marketing, Inc., Maison Tropicale S.A., and Wan-Fu China, Ltd., WIPO Case No. D2007-0500; Cartiere Miliani Fabriano SPA.v. Keyword Marketing, Inc., WIPO Case No. D2007-0411; Beds Direct Nationwide Limited v. Keyword Marketing, Inc., WIPO Case No. D2007-0406; Alliance & Leicester PLC v. Keyword Marketing, Inc., WIPO Case No. D2007-0245; Sanofi-aventis v. Keyword Marketing, Inc., WIPO Case No. D2007-0075; and Edmunds.com, Inc. v. Web Advertising, Corp. / Keyword Marketing, Inc., WIPO Case No. D2006-1380. Panels have long held that the registration of multiple domain names that are confusingly similar to established marks is deemed to be evidence of bad faith. See, e.g., CSC Holdings, Inc. v. Elbridge Gagne, WIPO Case No. D2003-0273.

This Panel finds that Respondent has registered and used the disputed domain name in bad faith, in violation of paragraph 4(b)(iv) 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, <photomodeller.com> be transferred to Complainant.

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Sandra A. Sellers
Sole Panelist

Dated: August 7, 2007