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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ebm-papst Mulfingen GmbH & Co. KG v. Domain Administration Limited

Case No. D2007-1332

1. The Parties

The Complainant is ebm-papst Mulfingen GmbH & Co. KG, Mulfingen, Germany, represented by Patent- und Rechtsanwдlte Dr. Solf & Zapf, Germany.

The Respondent is Domain Administration Limited, Auckland, New Zealand.

2. The Domain Name and Registrar

The disputed domain name <ebm-pabst.com> is registered with InnerWise, Inc. d/b/a ItsYourDomain.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 6, 2007. On September 10, 2007, the Center transmitted by email to InnerWise, Inc. d/b/a ItsYourDomain.com a request for registrar verification in connection with the domain name at issue. On September 10, 2007 Tucows Inc. transmitted on behalf of InnerWise, Inc. d/b/a ItsYourDomain.com, 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”), 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 September 19, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 9, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 11, 2007.

The Center appointed Mr. Tobias Zuberbьhler as the sole panelist in this matter on October 23, 2007. The prospective decision date was set for November 5, 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

The Complainant is a German subsidiary company of the ebm-papst group, which claims to be one of the world market leaders in motors and fans. The company’s product portfolio comprises approximately 14,500 different products marketed worldwide. According to the Complaint the company has employed over 9,800 members of staff in Germany and throughout the world. Further, in the business year 2006/2007 the company ebm-papst is said to have generated a turn-over of € 1,045 million (consolidated).

Since August 26, 2003, the Complainant has registered various national and international marks under the trademark EBMPAPST in Europe and the rest of the world, including New Zealand, the domicile of the Respondent. The Complainant operates its own websites and provides information about its business and its goods. The Complainant is also the owner of, inter alia, the domain names <ebmpapst.com> and <ebm-papst.com>.

The domain name at issue was purportedly registered on October 26, 2006 and subsequently transferred to the Respondent.

5. Parties’ Contentions

A. Complainant

The Complainant objects to the use of the disputed domain name by the Respondent and bases its Complaint on the following grounds:

1. The simple replacement of the second “p” of the Complainant’s trademarks by the letter “b” in the domain name at issue does not prevent a finding of confusing similarity to the Complainant’s trademark.

2. The Respondent makes no legitimate non-commercial or fair use of the domain name at issue. The Complainant has no relationship with the Respondent and has never authorized the Respondent to use the Complainant’s marks or its trade name as a domain name. The Respondent has not commonly been known by the domain name and does not conduct any legitimate commercial or non-commercial business activity under the domain name.

3. The Respondent registered and uses the disputed domain name with the only purpose to divert customers to its own website for commercial gain. Accordingly, the domain name was registered and is being used in bad faith.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The disputed domain name differs from the Complainant’s registered trademarks EBMPAPST only by the replacement of the second “p” by the phonetically and visually highly similar letter “b” (a common misspelling in German speaking countries) and the inclusion of a hyphen between “ebm” and “pabst”, as also reflected in the Complainant’s company name. The replacement of “p” by the letter “b” indicates an engagement by the Respondent in so-called “typo-squatting”. The Panel finds that the described minor differences do not prevent a finding of confusing similarity.

The Complainant has thus fulfilled the requirements under paragraph paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the domain name at issue. The Panel also refers to the use of the disputed domain name as explained below under the third limb of the Policy. The Complainant having made a prima facie case which remains unrebutted, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

By its intention to benefit from Internet users’ possible typing errors and by including links on its website to, inter alia, competing companies offering fans, the Respondent has in the Panel’s view taken advantage of the Complainant’s strong reputation and the brand recognition of the Complainant’s various trademarks and is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark (cf. paragraph 4(b)(iv) of the Policy).

It may also reasonably be inferred that the Respondent knew about the Complainant’s trademarks and business when it registered the disputed domain name.

The Panel thus finds that the Respondent’s conduct constitutes bad faith registration and use, thus fulfilling paragraph 4(a)(iii) 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 <ebm-pabst.com> be transferred to the Complainant.

Tobias Zuberbьhler
Sole Panelist

Dated: November 5, 2007