Seko Worldwide, LLC v. Rubalier
Claim Number: FA1010001350191
Complainant is Seko Worldwide, LLC ("Complainant"), represented by Brett A. August of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Rubalier ("Respondent"), Equatorial Guinea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <seko.info>, registered with Webagentur.at Internet Services GmbH d/b/a domain.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 4, 2010; the National Arbitration Forum received payment on October 5, 2010. The Complaint was submitted in both German and English.
On October 8, 2010, Webagentur.at Internet Services GmbH d/b/a domain confirmed by e-mail to the National Arbitration Forum that the <seko.info> domain name is registered with Webagentur.at Internet Services GmbH d/b/a domain and that Respondent is the current registrant of the name. Webagentur.at Internet Services GmbH d/b/a domain has verified that Respondent is bound by the Webagentur.at Internet Services GmbH d/b/a domain registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 14, 2010, the Forum served the German language Complaint and all Annexes, including a German language Written Notice of the Complaint, setting a deadline of November 3, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@seko.info. Also on October 14, 2010, the German language Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 12, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the German language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <seko.info> domain name is identical to Complainant’s SEKO mark.
2. Respondent does not have any rights or legitimate interests in the <seko.info> domain name.
3. Respondent registered and used the <seko.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Seko Worldwide, LLC, is an international provider of supply chain solutions and offers a variety of services including freight transportation, integrated logistics and IT infrastructure, air freight shipping, warehousing, packaging, storage of goods, and travel arrangements. Complainant owns multiple trademarks for the SEKO mark with the United States Patent and Trademark Office (“USPTO”), the European Union Office for Harmonization in the Internal Market (“OHIM”), and the Canadian Intellectual Property Office (“CIPO”):
USPTO
Reg. No. 1,470,985 issued December 29, 1987;
Reg. No. 3,125,393 issued August 8, 2006;
OHIM
Reg. No. 004391281 issued April 10, 2007;
Reg. No. 004391272 issued April 24, 2007;
CIPO
Reg. No. TMA339,609 issued April 29, 1988;
Reg. No. TMA348,069 issued November 18, 1988; and
Reg. No. TMA720,552 issued August 8, 2008.
Respondent, Rubalier, registered the <seko.info> domain name on March 10, 2010. The disputed domain name resolves to a website offering the goods and services of Complainant’s competitors via pay-per-click links.
Paragraph 15(a) of the Rules instructs this 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Complainant owns multiple trademarks for the SEKO mark with the USPTO, the OHIM, and the CIPO:
USPTO
Reg. No. 1,470,985 issued December 29, 1987;
Reg. No. 3,125,393 issued August 8, 2006;
OHIM
Reg. No. 004391281 issued April 10, 2007;
Reg. No. 004391272 issued April 24, 2007;
CIPO
Reg. No. TMA339,609 issued April 29, 1988;
Reg. No. TMA348,069 issued November 18, 1988; and
Reg. No. TMA720,552 issued August 8, 2008.
The Panel finds that registering a mark with trademark authorities around the world establishes Complainant’s rights in the SEKO mark for the purposes of Policy ¶ 4(a)(i), even when the mark is not registered in the country of Respondent’s residence or business operations. See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Complainant argues that Respondent’s <seko.info> domain name is identical to Complainant’s SEKO mark because the only difference between Complainant’s mark and the disputed domain name is the addition of the generic top-level domain (“gTLD”) “.info.” The Panel finds that the presence of the gTLD “.info” is insignificant and does not distinguish the domain name from Complainant’s mark under Policy ¶ 4(a)(i). See PepsiCo, Inc. v. Shah, FA 103934 (Nat. Arb. Forum Mar. 4, 2002) (finding the <pepsico.info> domain name identical to the complainant’s PEPSICO mark); see also Microsoft Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i).“). Thus, the Panel finds that Respondent’s <seko.info> domain name is identical to Complainant’s SEKO mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name and accompanies such allegation with sufficient evidence to establish the prima facie case required by Policy ¶ 4(a)(ii). Once a complainant makes a prima facie case, the respondent must demonstrate that it does possess rights and legitimate interests in the disputed domain name. Because Respondent has failed to respond to the Complaint, the Panel may find Complainant’s allegations to be true and may hold that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). However, the Panel elects to consider the evidence presented in light of the Policy ¶ 4(c) factors.
Complainant contends that Respondent is not affiliated with or related to Complainant. Complainant asserts that Respondent is not licensed by Complainant or otherwise authorized to use Complainant’s mark. Because the WHOIS information for the <seko.info> domain name lists the registrant as “Rubalier” instead of a name corresponding to the disputed domain name, the Panel finds that Respondent is not commonly known by the disputed domain name and does not have rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant asserts that Respondent’s <seko.info> domain name resolves to a website featuring pay-per-click links to goods or services in competition with Complainant. The Panel finds that using the disputed domain name in connection with such a website that facilitates competition with Complainant is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that the website resolving from Respondent’s <seko.info> domain name features links to goods and services in competition with Complainant. The Panel finds that this use disrupts Complainant’s business and shows bad faith registration and use according to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <seko.info> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: November 22, 2010
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