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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

BHP Billiton Innovation Pty Ltd. v. Telecom Tech Corp.

Case No. D2008-1911

1. The Parties

Complainant is BHP Billiton Innovation Pty Ltd, Melbourne, Victoria, Australia, represented by JГјrgen Bebber & Caroline Talevski, Australia.

Respondent is Telecom Tech Corp., Panama City, Panama.

2. The Domain Names and Registrar

The disputed domain name <bhpbillitons.com> is registered with Spot Domain LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2008. On December 17, 2008, the Center transmitted by email to Spot Domain LLC a request for registrar verification in connection with the disputed domain name. On December 17, 2008, Spot Domain 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” or “UDRP”), 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 January 7, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 27, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 29, 2009.

The Center appointed William F. Hamilton as the sole panelist in this matter on February 10, 2009. 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 is the intellectual property holding company for BHP Billiton Group, a large diversified resources company employing approximately 37,000 persons in more than 25 countries. Complainant has registered the trademark BHP BILLITON in many national jurisdictions since at least 2001. Additionally Complainant is the registrant of numerous domain names incorporating the BHP BILLITON mark.

Respondent registered the disputed domain name on May 1, 2007.

5. Parties’ Contentions

A. Complainant

Complainant asserts that the disputed domain name is confusingly similar to the BHP BILLITON mark because the disputed domain name merely adds an “s” to the mark.

Complainant further asserts that Respondent has no rights or legitimate interests in the disputed domain name. Complainant asserts (i) Respondent is not a licensee of Complainant, (ii) the disputed domain name is not a criticism or gripe site, and (iii) the disputed domain name was registered long after Complainant registered the BHP BILLITON mark.

Complainant asserts the disputed domain name was registered and is being used in bad faith to attract unsuspecting Internet users. The disputed domain name resolves to landing pages consisting of links to websites offering for a wide variety of consumer oriented products and services for which Respondent receives a “click through” fees. The Complainant does not sponsor any of the products or services offered at these links.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Under paragraph 4(a) of the Policy, Complainant must prove each of the following:

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

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

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

Complainant must carry its burden of proof by a preponderance of evidence. Bootie Brewing Company v. Deanna D. Ward and Grabebootie Inc., WIPO Case No. D2003-0185.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to Complainant’s BHP BILLITON mark. The addition of an “s” as a suffix does little to dispel the likelihood of confusion, and amounts to a non-distinctive alteration.

Complainant has thus established the first element in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out in particular, but without limitation, three circumstances which, if proved by respondent, shall be evidence of respondent’s rights to or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii), namely:

(i) before any notice of the dispute to respondent, respondent’s use of, or demonstrable preparation to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; or

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

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

Complainant has made a prima facie showing of a lack of Respondent’s rights or legitimate interests in the mark. The disputed domain name was registered long after Complainant registered the BHP BILLITON mark and had established an international reputation. Respondent does not appear to have at any time been known by the disputed domain name. Respondent does not appear to have at any time been a licensee of the Complainant. The disputed domain name resolves to a website offering sponsored links to commercial websites. There appears to be no fair use justification for the use of the disputed domain name. Respondent has made no effort to demonstrate any rights or legitimate interests in the disputed domain name to overcome Complainant’s prima facie showing. Accordingly, the Panel determines Complainant has demonstrated that Respondent lacks any rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:

(i) circumstances indicating that respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) respondent 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 respondent has engaged in a pattern of such conduct; or

(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s website or other on-line locations, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of respondent’s website or locations or of a product.

The disputed domain name resolves to a landing page showing numerous links to websites offering a variety of products and services. Respondent is not in the business of offering such products, but presumably receives fees when such links are clicked. The sponsored links resolve to websites offering commercial products and services. The composition of the disputed domain name by the addition of a single “s” to the widely known and distinctive BHP BILLITON mark clearly evidences an intent to attract Internet users and to trade upon the goodwill and reputation associated with Complainant’s mark for commercial gain. Zwack Unicum Rt.. v. Erica J Duna, WIPO Case No. D2000-0037. Accordingly, the Panel determines the disputed domain name was registered and is being used in bad faith.

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 <bhpbillitons.com> be transferred to Complainant.

William F. Hamilton
Sole Panelist

Dated: February 25, 2009