Sony Corporation v. PrivacyProtect.org Domain Admin
Claim Number: FA1311001530453
Complainant is Sony Corporation (“Complainant”), represented by Gina M. McCreadie of Nixon Peabody LLP, Massachusetts, USA. Respondent is PrivacyProtect.org Domain Admin (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sonywebtasarim.com>, registered with LAUNCHPAD.COM, INC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 18, 2013; the National Arbitration Forum received payment on November 19, 2013.
On November 20, 2013, LAUNCHPAD.COM, INC. confirmed by email to the National Arbitration Forum that the <sonywebtasarim.com> domain name is registered with LAUNCHPAD.COM, INC. and stated that the current registrant of the name is Ibrahim Ozturk, Istanbul, Turkey. LAUNCHPAD.COM, INC. has verified that Respondent is bound by the LAUNCHPAD.COM, INC. 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 November 20, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 10, 2013 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts (including the email address provided by LAUNCHPAD.COM, INC. for Ibrahim Ozturk), and to postmaster@sonywebtasarim.com. Also on November 20, 2013, the 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 December 17, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an internationally known developer of electronic products and services for consumer and professional markets, motion pictures, music, and financial services. Complainant’s annual sales for fiscal year 2013 were approximately $72 billion. Complainant owns hundreds of registrations for the SONY mark in countries throughout the world.
Complainant contends that the disputed domain name, <sonywebtasarim.com>, is confusingly similar to its SONY mark. Complainant states that “web” and “tasarim,” the words added to Complainant’s mark within the domain name, are Turkish for “web” and “design,” and asserts that the domain name is confusingly similar to its mark notwithstanding the addition of these generic or descriptive terms.
Complainant further contends that Respondent lacks rights or legitimate interests in the disputed domain name. Complainant states in support thereof that Respondent is not affiliated with Complainant in any way, and has not been authorized to use Complainant’s mark. Complainant further asserts that Respondent is not making a bona fide offering of goods or services using the domain name, nor a legitimate noncommercial or fair use of the name, and is not commonly known by the domain name.
Finally, Complainant contends that the disputed domain name has been registered and used in bad faith. Complainant asserts that given the worldwide fame of its mark and reputation, Respondent’s knowledge of the mark can reasonably be inferred, and that Respondent’s withholding of its true identity provides further evidence of bad faith intent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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."
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.
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.”).
The disputed domain name combines Complainant’s famous trademark with the generic or descriptive term “web tasarim,” which is Turkish for “web design,” and the top-level domain suffix “.com”. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Hebrew U. of Jerusalem v. Bagley, FA 1242950 (Nat. Arb. Forum Mar. 11, 2009) (finding <einsteinwebdesign.com> confusingly similar to EINSTEIN); Aktiebolaget Electrolux v. Whois Privacy Protection Service, Inc. / Liderservis plus, D2013-1589 (WIPO Dec. 2, 2013) (finding <electroluxservisleri.com> confusingly similar to ELECTROLUX, noting that “servisleri” is Turkish for “services”). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and there is no evidence that the domain name has ever been used other than in an apparently infringing or dilutive manner. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site 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 [Respondent’s] web site or location or of a product or service
on [Respondent’s] web site or location.”
Respondent is using the domain name for what appears to be a web design business. The Panel considers it reasonable to infer that Respondent was aware of Complainant and its mark, and has intentionally sought to profit from confusion with Complainant’s mark. See Hebrew U. of Jerusalem v. Bagley, supra. Respondent’s failure to identify itself and to respond in this proceeding lend further support to the inference of bad faith.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sonywebtasarim.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 18, 2013
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