Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Compuware Corporation v. Technology Stars

Case No. DWS2007-0001

 

1. The Parties

The Complainant is Compuware Corporation, Detroit, Michigan, United States of America, represented by Jason R. Webber, Esq., United States of America.

The Respondent is Technology Stars, Sanan’a, Yemen.

 

2. The Domain Name and Registrar

The disputed domain name <compuware.ws> is registered with Go Daddy Software.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2007. On February 1, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On February 1, 2007, Go Daddy Software 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 and technical contact. 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 February 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 2, 2007.

The Center appointed James A. Barker as the sole panelist in this matter on March 13, 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.

The Complaint, as filed on January 30, 2007, did not comply with the administrative requirements of the Rules. In particular, the paragraph 3(b)(xv) of the Rules requires that “the complaint shall…(xv) Annex any documentary or other evidence, including…any trademark or service mark registration upon which the complaint relies, together with a schedule indexing such evidence”. The only attachments to the Complaint, as filed on January 30, 2007 were a copy of the Whois contact details for the Respondent, and a single page from the Registrar’s website headed “What do I do if I have a trademark dispute?”. As such, the Complainant had not complied with paragraph 3(b)(xv) of the Rules, at least to the extent it provided no evidence of the registered mark it claimed to own.

Where a complaint is administratively deficient, a complainant is ordinary given an opportunity to correct the complaint, to the extent of the deficiency. (See paragraph 4(b) of the Rules. Paragraph 12 of the Rules also provides for a Panel to request further information from the parties.)

Accordingly, on March 26, 2007, the Panel issued a Panel Order to the parties, requesting the Complainant to provide “evidence of the registered marks on which it relies, and any other evidence on which it relies”. The Panel Order also requested that, if the Respondent wished to make a submission in response to any further information provided by the Complainant, it should indicate its willingness to do so.

On March 29, 2007 (within the deadline provided by the Panel order), the Complainant provided evidence of its registered mark, and some additional brief statements about its activities and those of the Respondent. The Respondent did not reply to the Panel Order.

 

4. Factual Background

The disputed domain name was registered on July 1, 2005 (according to the Whois record, indicating the disputed domain name was “created” on that date).

At the date of this decision, the disputed domain name did not revert to an active website. The disputed domain name only reverted to a website with some basic graphics and a statement that “This website is Under Construction”. In one corner of the page is a sign reading “CompuWare IT Solutions” which, when clicked on, automatically launches a blank email addressed to “info@compuware.ws”. Whether the domain name has reverted to that website at any other point in time is not known. The Complainant provided no evidence to this effect.

In response to the Panel Order, the Complainant provided evidence of its registered mark COMPUWARE, as that mark is registered on the principal register of the United States Patent and Trademark Office. The mark is registered in relation to the “design and engineering of computer software and related systems development”. Although the Complainant claims to have marks registered “throughout the world” it provided no evidence of those other rights.

In a letter also filed in response to the Panel Order, the Complainant noted that “more evidence on our continued activities can be found at ‘www.compuware.com’, but provided no direct evidence of its activities. The letter also noted that “if one visits the website at ‘www.compuware.ws’, it is ‘under construction’ and has been for several months…”. The Complainant provided no evidence of when it visited that website, or any direct evidence of the site itself (i.e. a copy of the webpage, as at a particular it was visited).

At the date of this decision, the Complainant’s website contains the statement that “Compuware serves the world’s largest IT organizations, including 95 percent of the Fortune 100 companies. In addition to the popularity of our award-winning solutions, we have over 7,000 organizations utilizing the knowledge, skill and dedication of our global professional services team”.

 

5. Parties’ Contentions

A. Complainant

The Complaint is brief. In comparison to most complaints submitted under the Policy, it is supported by minimal evidence and argument. The Complaint (as it relates to paragraph 4(a) of the Policy) is reproduced in its entirety as follows, beneath the relevant headings:

Identical or confusingly similar

“The trademark and service mark on which the complaint is based is COMPUWARE. Compuware corporation has multiple Trademarks and service marks registrations for this name throughout the world. ‘www.compuware.ws’ is identifcal (sic) to our trademark of Compuware. Compuware intends to use the mark in the future to continue to sell software related products and services for mainframe and server use.”

Rights or legitimate interests

“The Respondent should be considered as having no rights or legitimate interests in respect of the domain name that is the subject of the Complaint. Before any notice to the Respondent of the dispute, there is NO evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. The Respondent is NOT commonly known by the domain name, even though the Respondent has acquired no trademark or service mark rights.

“The Respondent is not making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue. Again, the website has been under construction for months without any use.”

Bad faith

“We believe the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of the trademark or service mark, Compuware Corporation. The site has been under construction for months and has yet to host any content.

“Additionally they seek to confuse anyone looking for Compuware software. We contend that the domain name was registered in order to prevent the owner of the trademark or service mark (Compuware Corporation) from reflecting the mark in a corresponding domain name.

Accordingly, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with Compuwares’s (sic) mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.”

B. Respondent

The Respondent did not reply to the Complainant’s contentions, or make any other communication in connection with this case.

 

6. Discussion and Findings

For the Complaint to succeed, under paragraph 4(a) of the Policy the Complainant must prove that:

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

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

(iii) the disputed domain name was registered in bad faith and is being used in bad faith.

The Complainant must prove each of these three elements. They are discussed in turn as follows.

A. Identical or Confusingly Similar

Under paragraph 4(a)(i) of the Policy, a Complainant must establish that it “has rights” in a trademark or service mark. The Complainant has done this by providing evidence (in response to the Panel Order) of its registered rights in the COMPUWARE mark.

It is well-established that extensions such as “.ws” are to be disregarded for the purpose of determining identicality or confusing similarity. Setting aside that extension, the disputed domain name is clearly identical to the Complainant’s mark.

For these reasons, the Complainant has established this first element of the Policy.

B. Rights or Legitimate Interests

The Complainant may establish that the Respondent has no rights or legitimate interests in the disputed domain name by making a prima facie case against the Respondent. (See Overview of WIPO Panel Views on Selected UDRP Questions, item 2.1.) The Respondent has not submitted any Response. As such, whether the Complainant has established this element depends on whether the Complainant has established a prima facie case.

“Prima facie evidence” is defined as “evidence sufficient to establish a fact, or to raise a presumption of fact, unless rebutted” (see Maquarie Concise Dictionary, 3^rd ed.). Similarly, “prima facie” is defined in Wikipedia as a term meaning “‘on its first appearance,’ or ‘by first instance’ used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition or fact”. The Merriam-Webster online dictionary defines the term as “true, valid, or sufficient at first impression”. That dictionary also defines “prima facie evidence” as “legally sufficient to establish a fact or a case unless disproved”.

The essential character of prima facie evidence therefore, following all these similar definitions, is that it is “sufficient” at first sight to establish its case. But the term still begs the question as to what is sufficient in any particular case.

What is “sufficient” evidence for the purpose of the Policy has been generally set out by previous panels as follows:

“…the Complainant makes the allegation and puts forward what he can in support (e.g. he has rights to the name, the Respondent has no rights to the name of which he is aware, he has not given any permission to the Respondent). Unless the allegation is manifestly misconceived, the Respondent has a case to answer and that is where paragraph 4(c) of the Policy comes in. If the Respondent then fails to demonstrate his rights or legitimate interests in respect of the Domain Name, the complaint succeeds under this head.” (Julian Barnes –V- Old Barn Studios Limited, WIPO Case No. D2001-0121. This formulation was e.g. adopted by the panel in Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110, which is also a case cited in the Overview of WIPO Panel Views on Selected UDRP Questions, at item 2.1.)

In this case, the Complainant has made only standard ‘boilerplate’ assertions: being assertions that there is no evidence of the grounds set out in paragraph 4(c)(i) – (iii) of the Policy, which might establish the Respondent’s rights or legitimate interests. The Complainant provides no evidence of the reputation of its mark, which might go towards disproving any rights or legitimate interests of the Respondent. Neither does the Complainant provide any other evidence in support of its case. It is clear that the Complainant has not provided what it can in support of its allegations.

In similar circumstances to this one, panels have denied complaints that provide little or no evidence or argument to prove their case. (See, e.g. Koninklijke Philips Electronics N.V. v. Relson Limited, WIPO Case No. DWS2001-0003, and other cases cited in that one. And the complainant in that case provided more evidence and argument than the Complainant in this case.)

However, in this case the Panel finds that the Complainant has established this element for the following reasons.

Firstly, although the ultimate burden of proof is on the Complainant, the Panel must make its finding, for the purpose of paragraph 4(a)(ii) of the Policy, on the basis “of all evidence presented”. On one view, the term “evidence presented” suggests that the evidence must be that presented by the parties. But this Panel does not take such a narrow view. The terms of the Policy are not explicitly limited in that way. Further, many panels have taken the approach that limited research by the Panel is permissible for the purpose of deciding a Complaint - not only in relation to this ground, but also the other grounds set out in paragraph 4(a) of the Policy. (See, Overview of WIPO Panel Views on Selected UDRP Questions, at item 4.5.) The obvious implication of such an approach is that the Policy does not limit a panel in taking into account evidence additional to any presented by the parties.

Secondly, there is no evidence available to the Panel that suggests that the Respondent has any rights or legitimate interests in the disputed domain name. The disputed domain name wholly incorporates the Complainant’s registered mark. The mark appears to be an invented term. A simple Google search for “Compuware” results in the top hits all relating to the Complainant and its services. As such, it appears unlikely that the Respondent would have chosen the disputed domain name without some knowledge of the Complainant.

Thirdly, although the Complainant has made only ‘boilerplate’ assertions, they are not ‘manifestly misconceived’ and it appears that the Respondent at least has a case to answer. However, the Respondent has filed no response. As such, even though the Complainant’s case is weakly supported, the Respondent has left itself open to a finding against it.

For all these reasons, the Panel finds that the second element of the Policy is established.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, any of which, if found by the Panel to be present, are evidence of bad faith.

The Complainant makes allegations that are based on the terms of paragraphs 4(b)(i), (ii) and (iv) of the Policy. The Complainant provides no evidence at all to support those allegations. In the absence of such evidence, those claims are misconceived. There is otherwise no evidence to support a finding under any of those elements of the Policy.

The circumstances in paragraph 4(b) of the Policy are not, however, exclusive of the circumstances in which bad faith may be found. There is some other evidence in this case (although limited, and not argued or provided by the Complainant) that indicates that the Respondent registered and has used the disputed domain name in bad faith. As noted above, the Complainant’s mark appears to be relatively distinctive. It does not appear to be a mark that the Respondent would have chosen accidentally, without knowledge of the Complainant. Further, there is nothing in the character of the Respondent’s website which suggests any good faith use by the Respondent.

This evidence of bad faith registration and use is not strong, compared to other cases that are usually filed under the Policy. However, the Panel finds that this evidence is sufficient, at least in the face of no contrary case being advanced by the Respondent. As noted by the panel in Brooke Bollea, a.k.a Brooke Hogan v. Robert McGowan, WIPO Case No. D2004-0383:

“Panelists’ inferring factual or legal conclusions from complainants’ unsupported allegations coupled with no response are occasionally necessary (and appropriate), because matters involving a respondent’s motive, intent, purpose, and other subjective factors determinative under Paragraphs 4(a)(ii) and 4(a)(iii) will not always be susceptible of direct proof, at least without the discovery and cross-examination that are unavailable to a complainant or a panelist in proceedings under the Policy. A complainant must often prove such matters with a prima facie showing that, when unchallenged, a panelist can accept.”

The Panel notes that the ‘prima facie showing’ in this case is not one that has been established entirely by the Complainant itself. It is a showing on the face of all the evidence available to the Panel.

 

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, <compuware.ws>, be transferred to the Complainant.

---

James A. Barker
Sole Panelist

Dated April 2, 2007