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

Dell Inc. v. Biosunlockers

Case No. D2008-0879

 

1. The Parties

The Complainant is Dell Inc., of Texas, United States of America, represented by Field Fisher Waterhouse LLP, the United Kingdom of Great Britain and Northern Ireland.

The Respondent is Biosunlockers, the Russian Federation.

 

2. The Domain Name and Registrar

The disputed domain name <dellbiospasswords.com> (“the Domain Name”) is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2008. On June 9, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name. On June 9, 2008, eNom transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. The Respondent’s address was just shown as “Russia”, and an obviously fictitious telephone number was provided (“1,000 000 000 0000”). An apparently useable email address for the registrant was provided. 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 June 13, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was July 3, 2008. The notification by the Center included email transmissions to two email addresses for the Respondent which the Complainant had provided.

On June 13, 2008, the Center received an email from one of those email addresses (“Email address number 1”), in the following terms:

“speaking plainly i am not in the uk and whois info shows that i am in russia dell have no rights in russia if they did they would use russian lawyers so do what you can if you decide in there favor you are breaking russian law and i will complain to my embassy.”

The Center acknowledged receipt of that email, and drew the sender’s attention to the model Response form and filing guidelines on the Center’s website.

Within an hour of providing that advice, the Center received by email a short document in response to the Complaint. It was attached to an email fromEmail address number 1, advising: “my official response is attached”. The attached (unsigned) document was addressed: “Dear Dell”, and it commenced by abusing the Complainant and accusing it of bullying. The author said that he or she was in Russia, and requested that the Complainant use Russian lawyers, not lawyers from the United States of America. The document asserted:

“The domain in question is not yours its [sic] myn. I am the guy who thought of it not you or your crew In this time the site is not being used”.

The document went on to say “Your power is null in Russia”. It concluded with the words “Regards dimitri and mother”.

The Center received the same document at about the same time from the second email address provided by the Complainant (Email address number 2) with the covering note: “attached official response”.

At about the same time, the Center received a second email from same Email address number 2. This one said: “Hello why are you sending me this message? this domain is nothing to do with me.”

There was also another email, at about the same time, from former Email address number 1. This one simply said: “Not my domain moron”.

The Respondent not having submitted any formal or other Response with the apparent exception of the communications noted above, the Center notified the Respondent’s default on July 4, 2008.

On July 4, 2008, the Center received an email reply to “its Notification of Respondent Default”. The email advised the Center of the sender’s new telephone number (which appears from the international telephone numbering system to have been in Spain), and asked the Center to change its records so that the sender could be contacted at the new number.

The Center appointed Warwick Smith as the sole panelist in this matter on July 16, 2008. 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 July 18, 2008, the Panel received an email from Email address number 1 stating:

“again i respond in Russia this law not exist its russian owned domain why this continue? address in uk is not exist anymore and was technical contact not owner why this continue? why dell think they can bully russian?”

The Panel directed the Center to copy this email to the parties, with a reminder that no party is permitted to contact the Panel directly and that: under the Rules, all communications intended to be read by the Panel are required to be made through the Center.

In the absence of any Response, the Panel has checked the record to ensure that the Center has discharged its responsibility under Paragraph 2 of the Rules, to employ reasonably available means calculated to achieve actual notice of the Complaint to the Respondent. The Panel is satisfied that the Center has discharged that obligation.

 

4. Factual Background

The following (uncontested) facts are taken from the Complaint.

The Complainant

The Complainant and its subsidiary companies operate worldwide, selling a broad range of computers and similar products. The Complainant began using the name and mark DELL in 1987. Since 1987, the DELL brand has become one of the most recognized brands in the world.

The words “Bios” and “password” are descriptive terms in the computer industry. “Bios” is the built-in software in a computer which typically contains all the code required to start the operating system and communicate with the various hardware devices in a computer (such as the keyboard, the monitor, and disk drives). As a security measure, the owner of a computer can prevent his or her machine from being operated by unauthorized third parties, by adopting a “Bios” password.

The Complainant provides the service of unlocking DELL Bios passwords. This service is offered exclusively to the Complainant’s customers, free of charge, as long as they can provide the Complainant with proof of ownership. Most commonly the service is used when owners have forgotten their passwords.

The Complainant sells its products through a variety of outlets, including online through its website at “www.dell.com”. It does not allow anyone, including its resellers, to use its DELL mark in their domain names.

The Complainant’s Trade Marks

The Complainant holds registrations of the mark DELL for a variety of products and in numerous jurisdictions, including the European Union and the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). These registrations include the word mark DELL, and a DELL device mark. All of these registrations have been in force from dates well before the date the Respondent registered the Domain Name in September 2007.

In addition, the Complainant holds European Union and United Kingdom registrations for the mark WWW.DELL.COM. Again, these registrations cover a variety of goods and services. Both registrations have been in effect since September 1998.

The Respondent and the Domain Name

The Domain Name was registered on September 21, 2007.

The Complainant first became aware of the Respondent shortly after the Domain Name was registered. The Domain Name then resolved to a web page which stated:

“SORRY YOU WERE RIPPED OFF WITH THIS DOMAIN.

100% real WEBSITE = WWW.SPUNLOCK.COM

IF YOU WANT THE REAL DEAL PLEASE GO TO SPUNLOCK.COM THEY HAVE PAYPAL AND EBAY VERIFIED PAYMENTS SYSTEMS.

THANK YOU”

That web page, including the click-through link to the website at “www.spunlock.com” (“the Spunlock Website”), remained unchanged until the end of January 2008.

Up until some time towards the end of January 2008, the Domain Name was registered to a Mr. James Carter. By the time the Complainant visited the website at the Domain Name on January 31, 2008, however, the WhoIs details for the Domain Name had been amended to the current contact details and the Domain Name was pointed to a website containing the message: “You are not authorized to view this page”. Mr. Carter remained the technical contact for the Domain Name. The Spunlock Website was still available at “www.spunlock.com”.

The Spunlock Website offered the service of unlocking Bios passwords for a number of computer brands, including Dell, in return for a fee. The Complainant says that as at December 18, 2007 the Spunlock Website referred to the DELL mark, and used the DELL device mark, on numerous occasions and on numerous web pages.

The Spunlock Website has gone through various forms, but it has continually offered the service of unlocking DELL Bios passwords for a fee.

Correspondence before the issue of the Complaint

The Complainant’s representative sent a cease and desist letter to Mr. James Carter of the Respondent, on December 18, 2007. The letter was sent to the United Kingdom address which was then provided in the WhoIs register for the Domain Name, and also to an email address on the Spunlock Website for Mr. Carter (who was then the registrant of the Domain Name). The emailed copy of the letter was acknowledged with a very brief email stating: “umm ok”. The letter noted that a cease and desist letter had also been sent to a Mr. Djamel Zidour, who was said to be “the owner of numerous domain names which redirect to the [Spunlock Website] as well as to other infringing websites.”

The Respondent did not provide any substantive response to the cease and desist letter, but by January 8, 2008, the Spunlock Website had been amended to include a “disclaimer”. The “disclaimer” read:

“DISCLAIMER WE DO NOT USE COPYRIGHTED FILES OR PASSWORD DECODERS BELONGING TO ANY TRADEMARK COMPANYS.

WE USE MATHS WHICH COMES FROM BRAIN TO GET PASSWORDS NOTHING ELSE IS USED AND APPLIED.

WE DO NOT CONVINCE PEOPLE TO STEAL LAPTOPS OR ELSE BREAK THERE WARRANTY EACH PERSON IN THE LIFE IS RESPONSIBLE TO HIMSELF.”

A different form of disclaimer had been posted on the Spunlock Website by January 25, 2008. The revised form of disclaimer read:

“DISCLAIMER WE ARE NOT PART OF DELL INC WE DO NOT REPRESENT DELL INC.

ALL TRADEMARK AND COPYRIGHTED MATERIAL USED HERE IS FREELY AVAILABLE IN GOOGLE AND ALL OVER NET.

WE DO NOT CONVINCE PEOPLE TO CIRCUMVENT SECURITY OR STEAL LAPTOPS OR VOID THERE WARRANTY ALL PEOPLE IN LIFE ARE RESPOONSIBLE FOR THEMSELVES WE DO NOT USE COPYRIGHTED DELL PASSWORD DECODERS WE USE MATHS FROM BRAIN OUR COMPANY IS RUSSIAN BASED.”

The Complainant’s representative wrote again to Mr. Carter at the Respondent’s United Kingdom address, on January 28, 2008. The letter was sent by special delivery, and a copy was sent to the email address at the Spunlock Website. The letter was also sent to the registrant of the <spunlock.com> domain name. The letter dated January 28 enclosed a copy of a letter sent that day by the Complainant’s representative to Mr. Djamel Zidour, but the correspondence to Mr. Zidour has not been produced in evidence.

The Complainant’s representative received a response by way of two emails, sent within 25 minutes of each other. The first email (from the Spunlock Website email address) offered an apology, but said that the author did not know who Mr. James Carter was or “this djamel you speak of”. The email asserted that the operation at the Spunlock Website was not illegal in any way, and generally ridiculed the Complainant’s “threats”. The email concluded:

“You may or may not realize this but do you really think I would use my real details and not that of friends or paid proxies?

Please don’t insult my intelligence.”

The second email from the Spunlock Website email address accused the Complainant of “picking on the small guys”, and enquired (rhetorically) why, if the Complainant was so worried, it didn’t use its billions to change simple security in its laptops. The author accused the Complainant of using bullying tactics (“winning your case looking tough spouting lawyer rubbish”), and concluded by asking the Complainant’s representative not to bother emailing him anymore, as he did not “fancy educating you at all”.

The hard copy of the January 28 letter which had been posted to the registrant’s United Kingdom physical address shown in the WhoIs particulars for the Domain Name, was returned by the Royal Mail on February 1, 2008 marked “no such address”.

Following correspondence between the Complainant’s representative and the Internet Service Provider for the Domain Name, the Domain Name was suspended. Following further correspondence between the Complainant’s representative and eNom, Inc, the Domain Name was disabled.

By May 21, 2008, the disclaimer on the Spunlock Website had been further amended, to include the assertion: “Our company is Vietnam based”. The contact telephone number provided on the Spunlock Website remained the same London telephone number which had appeared earlier on the Spunlock Website.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends:

1. The Domain Name is confusingly similar to the Complainant’s DELL trade marks. The Domain Name incorporates the DELL mark, and the words “bios” and “password” are descriptive terms in the computer industry where the DELL marks are best known. Confusing similarity may be found where a disputed domain name incorporates the complainant’s entire mark and adds merely descriptive terms (citing Am. Online Inc. v. Anytime Online Traffic School, National Arbitration Forum Case No.146930, and Westfield Corporation, Inc and Westfield Limited v. Graeme Michael Hobbs (Dynamic Marketing Consultants), WIPO Case No. D2000-0227).

2. The Complainant has a strict policy of not allowing anyone, including its resellers, to use its mark in their domain names. As a result of this policy, Internet customers believe that any domain name incorporating the DELL mark is controlled, approved, endorsed and/or operated by the Complainant. The Domain Name will be understood by Internet users as referring to a service offered by or on behalf of the Complainant, namely providing assistance in unlocking DELL Bios passwords.

3. The Respondent has no rights or legitimate interests in respect of the Domain Name. First, the Respondent has not been commonly known by the Domain Name. Secondly, there is no evidence that the Respondent has used or uses the Domain Name in connection with a bona fide offering of goods or services. Thirdly, the Respondent’s use of the Domain Name has been commercial. The various iterations of the Spunlock Website have always offered the DELL Bios password unlocking service for a fee. The Respondent could not have a right or legitimate interest in the Domain Name under paragraph 4(c)(iii) of the Policy. Fourthly, the Respondent is not a licensee of, or otherwise affiliated with, the Complainant. The Respondent has no interest in the “Dell” name, other than to profit from the inclusion of the Complainant’s widely known mark and to capitalize on the resulting confused Internet traffic which is misdirected to the website at the Domain Name.

4. The Respondent registered the Domain Name primarily for the purpose of unfairly disrupting the business of the Complainant. The Respondent charges a fee for its unlocking service, whereas the Complainant provides that service to its customers free of charge (as long as proof of ownership can be established).

5. Any physical manipulations of Dell machines to gain access to Dell Bios chips in order to clear the Bios password, could potentially cause damage to the Dell machines. Customers unsatisfied with the Respondent’s services may wrongly blame Dell for their difficulties, unfairly causing detriment to Dell’s reputation.

6. By using the Domain Name, the Respondent has intentionally attempted to attract for commercial gain, Internet users to the Respondent’s website and/or the various iterations of the Spunlock Website, by creating a likelihood of confusion with the DELL trade marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and/or the various iterations of the Spunlock Websites and/or the service on the Spunlock Websites to unlock DELL Bios passwords.

7. The use of the Complainant’s DELL marks (including the DELL device mark) on numerous occasions on the Spunlock Website will have inevitably caused confusion among Internet users and given the impression of a commercial connection between the Complainant and the Respondent.

8. The use of a disclaimer on the Spunlock Website does not prevent confusion among Internet users. The disclaimer does not accompany the Domain Name, which attracts the consumer’s initial interest, and the consumer is misdirected long before he/she has the opportunity to see the disclaimer (citing AltaVista Company v Astavista.com, National Arbitration Forum Case No.95251, and DaimlerChrysler Corporation v. Brad Bargman, WIPO Case No. D2000-0222).

9. The Respondent has confirmed in correspondence that he has provided false or incorrect contact details. That has been independently verified by the return of the January 28 letter that was sent by the Complainant’s representative by special delivery. Further, the current contact details on the WhoIs particulars are patently false (the only physical address provided is “Russia RU”, and the only telephone number “+1. 000 000 000 0000”). That is a further indication of bad faith on the part of the Respondent.

B. Respondent

Apart from the email communications referred to above, the Center did not receive any response to the Complainant’s contentions.

 

6. Discussion and Findings

A. What the Complainant Must Prove – General

Under paragraph 4(a) of the Policy, the Complainant has the burden of proving the following:

(i) That the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) That the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) That the Domain Name has been registered and is being used in bad faith.

Paragraph 15(a) of the Rules requires the Panel to:

“… decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any Rules and principles of law that it deems applicable”.

Where a respondent has not submitted a response, paragraph 5(e) of the Rules requires the Panel to “decide the dispute based on the complaint”. Under paragraph 14(b) of the Rules, the Panel may draw such inferences from a respondent’s failure to comply with the Rules (e.g. by failing to file a response), as the Panel considers appropriate.

B. Identical or Confusingly Similar

The Complainant has sufficiently proved that it has rights in respect of the registered mark DELL.

The Panel accepts that the Domain Name is confusingly similar to the Complainant’s DELL mark. First, the Complainant’s mark has been incorporated in its entirety in the Domain Name. Numerous panels have treated the incorporation of a complainant’s mark in a disputed domain name, as sufficient to establish confusing similarity (see, for example, Nokia Group v. Mr. Giannattasio Mario, WIPO Case No. D2002-0782, and the decisions referred to at pages 4 to 5 of the decision in that case). There may be some cases where a disputed domain name which incorporates in full another party’s trade mark will not be confusingly to that mark, because sufficient additional letters or numbers have been added to the mark to remove any confusion. That is not the case here. The distinctive part of the Domain Name is the word “dell”, a word which is widely known throughout the world as a trade mark in the computer industry. The addition of the expressions “bios” and “passwords” do nothing to alleviate the confusing similarity caused by the use of the Complainant’s mark in the Domain Name – both expressions are commonly used descriptive expressions in the very industry (the computer industry) in which the Complainant’s DELL mark is widely known.

C. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:

(i) Before any notice to [the respondent] of the dispute, use by [the respondent] of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the disputed domain name, even if [the respondent has] acquired no trade mark or service mark rights; or

(iii) Where [the respondent is] making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

If the circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interests on the part of the Respondent, the evidentiary burden shifts to the Respondent to show, by plausible, concrete evidence, that it does have a right or a legitimate interest in the Domain Name.

That approach is summarized at paragraph 2.1 of the Center’s online document “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, which states that a Complainant must establish a:

“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”.

The Domain Name is confusingly similar to the Complainant’s DELL mark, and the Complainant has not authorized the Respondent to use its mark, whether by incorporating it into a domain name or otherwise. The Respondent is not commonly known by the Domain Name, and there is therefore no indication that the Respondent might have a right or legitimate interest in the Domain Name under paragraph 4(c)(ii) of the Policy. The Domain Name does not appear to have been used for any fair or legitimate non commercial purpose, without intent for commercial gain: the Domain Name when first registered served only to provide a link to the commercial Spunlock Website, the owners of which are clearly operating an online business. There is therefore nothing in the evidence which would suggest that the Respondent might have a right or legitimate interest under paragraph 4(c)(iii) of the Policy.

The above-described facts are sufficient to establish an initial prima facie case of “no rights or legitimate interests”. As there has been no response, that prima facie case stands unrebutted, and the Complainant succeeds on this part of its Complaint.

For completeness, the Panel adds that it is also satisfied on the evidence that the Respondent could nothave brought itself within the safe harbor of paragraph 4(c)(i) of the Policy – use of a disputed domain name in connection with a bona fide offering of goods or services, before the respondent receives notice of the dispute. For the reasons which appear in the next section of this decision, namely, the Panel is satisfied that the Respondent registered the Domain Name in bad faith, and has used it in bad faith.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances include:

(iv) by using the disputed domain name, [the respondent has] 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 the complainant’s 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.

The Panel is satisfied that the Respondent’s use of the Domain Name falls squarely within that paragraph of the Policy. The Panel has come to that view for the following reasons.

1. The Respondent was obviously well aware of the Complainant and its DELL mark when it registered the Domain Name on September 21, 2007. The Complainant’s uncontested evidence is that when (shortly after the Domain Name was registered) it visited the website to which the Domain Name then resolved, the web page began with the statement: “Sorry you were ripped off with this domain”. The site visitor was then invited to click on a link to the Spunlock Website, where the site visitor would find “the real deal”. The Spunlock Website offered the service of unlocking Bios passwords for a number of computer brands, including Dell. That use of the Domain Name so soon after it was registered, provides ample evidence that the Respondent was aware of the Complainant and its mark when it registered the Domain Name.

2. The Panel is satisfied on the evidence which the Complainant has produced, that the Domain Name has been controlled by those responsible for the operation of the Spunlock Website. The only purpose the Domain Name seems to have served, has been to act as an indirect pointer to the Spunlock Website.

3. The Panel is also satisfied that the Respondent has been using the Domain Name and the Spunlock Website, for commercial purposes, namely selling the service of unlocking Dell computer Bios passwords, for a fee.

4. That the Respondent used the Complainant’s DELL mark as part of the Domain Name for the express purpose of indirectly attracting to the Spunlock Website Internet browsers looking for websites associated with the Complainant’s Bios and passwords, is confirmed by the use of the words: “Sorry you were ripped off with this domain”. Those words effectively acknowledged that the site visitor had arrived at the website to which the Domain Name initially resolved by mistake, having been misled (“ripped off”) by the use of the DELL mark in the Domain Name.

5. The Panel is satisfied that the circumstances just described fall within paragraph 4(b)(iv) of the Policy – by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website to which the Domain Name initially resolved (and from there to the Spunlock Website), by creating a likelihood of confusion with the Complainant’s DELL mark as to the source, sponsorship, affiliation or endorsement of the website to which the Domain Name initially resolved and/or the Spunlock Website and/or the services offered through the Spunlock Website.

6. There is substantial additional evidence that the Respondent registered and has been using the Domain Name in bad faith. First, the Respondent has used the DELL trade marks, including the DELL device mark, on the Spunlock Website, without any authority from the Complainant. That use appears to have been calculated to enhance the false impression that the Spunlock Website is somehow authorized by or affiliated with the Complainant. Secondly, the Respondent appears to have provided fictitious contact details in the WhoIs information for the Domain Name. A physical “address” consisting solely of the word “Russia”, was really not an address at all, and the same can be said of a telephone number consisting of the digit “1” followed by 13 zeros. Likewise, the apparently non-existent United Kingdom address shown in the WhoIs particulars in January 2008, and the various assertions subsequently posted on the Spunlock Website that its owners were based in Russia, and more recently Vietnam (while maintaining a contact number in London throughout), all appear to have been designed to frustrate any attempt to initiate proceedings under the Policy. Indeed, the Respondent has effectively acknowledged in its correspondence that it has provided incorrect contact details for the Domain Name (see the January 28, 2008 email from the Spunlock Website, in which the author said: “You may or may not realize this but do you really think I would use my real details and not that of friends or paid proxy?”). The provision of false or misleading contact particulars when registering a disputed domain name has been held to be an indicator of bad faith registration in numerous UDRP Panel decisions, going back to the very early days of the Policy (see for example Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).

7. The Respondent cannot claim to be a genuine reseller of services associated with the Complainant’s products. According to the Spunlock Website, Bios password unlocking services are offered for numerous computer models, including those of the Complainant’s competitors. The use of a manufacturer’s trade mark in a domain name by a reseller of that manufacturer’s products, is only to be regarded as bona fide if certain conditions are satisfied. One of those conditions is that the reseller must use the website to which the disputed domain name resolves, to sell only the trade marked products. Otherwise, the reseller could be using the manufacturer’s trade mark to bait Internet users, and then switch them to other goods. (See Oki Data Americas. Inc. v. ASD, Inc., WIPO Case No. D2001-0903, and the decision of this Panel in Roust Trading Limited v. AMG LLC, WIPO Case No. D2007-1857).

8. The various disclaimers posted on the Spunlock Website do not affect the Panel’s conclusion on the bad faith registration and use issue. The Panel accepts the Complainant’s submission based on the AltaVista Company v. Astavista.com, and DaimlerChrysler Incorporation v Brad Bargman cases, that disclaimers posted on the website to which a disputed domain name resolves come too late to cure the mischief caused by the use of the complainant’s trade mark in the disputed domain name. The disputed domain name attracts the consumer’s initial interest, and the consumer is misdirected long before he/she has the opportunity to see the disclaimer.

9. The Respondent’s various emails to the Center do not provide any reason for the Panel to take a different view on the merits of this case. Specifically, the question of Russian law does not arise, as the Panel is concerned with whether the Complainant has proved the three elements of paragraph 4(a) of the Policy. The Respondent undertook to be bound by the Policy when it entered into its agreement with eNom Inc. to register the Domain Name. In entering into that agreement it also agreed to submit to an administrative proceeding under the Policy, in the event that a claim such as the present claim should be lodged. The Complainant does not need to have trade mark or other rights in Russia to succeed with this Complaint. It is enough for the Complainant to establish the three elements of paragraph 4(a) of the Policy, which it has done.

 

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 <dellbiospasswords.com> be transferred to the Complainant.

---

Warwick Smith
Sole Panelist

Dated: July 30, 2008