Nokia Corporation v. Domain Admin
dev@mjkonline.net
Claim Number: FA0610000825750
PARTIES
Complainant is Nokia Corporation (“Complainant”), represented by Jane Mutimear, of Bird & Bird, 90 Fetter Lane, London EC4A 1JP, United Kingdom. Respondent is Domain Admin dev@mjkonline.net (“Respondent”), PO Box 27393, London, Greater London E12 5WN, UK.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mynokia.com>,
registered with ! 1 Host Malaysia, Inc.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on October 24, 2006; the National Arbitration Forum received a
hard copy of the Complaint on October 25, 2006.
On October 26, 2006, ! 1 Host Malaysia,Inc confirmed by e-mail to the
National Arbitration Forum that the <mynokia.com>
domain name is registered with ! 1 Host Malaysia, Inc and that the Respondent
is the current registrant of the name. !
1 Host Malaysia, Inc has verified that Respondent is bound by the ! 1 Host
Malaysia,Inc registration agreement and has thereby agreed to resolve
domain-name disputes brought by third parties in accordance with ICANN’s
Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 27, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of December 4, 2006 by which Respondent could file a Response to the Complaint,
was transmitted to Respondent via e-mail, post and fax, to all entities and
persons listed on Respondent’s registration as technical, administrative and
billing contacts, and to postmaster@mynokia.com by e-mail.
A timely Response was received and determined to be complete on November
16, 2006.
On November 27, 2006, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Sandra J. Franklin as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <mynokia.com> domain name is confusingly similar to Complainant’s NOKIA mark.
2. Respondent does not have any rights or legitimate interests in the <mynokia.com> domain name.
3. Respondent registered and used the <mynokia.com> domain name in bad faith.
B. Respondent failed to submit a proper Response in this proceeding.
FINDINGS
Complainant is the world’s largest
manufacturer of mobile phones, sold under the mark NOKIA. Complainant holds many registered trademarks
for NOKIA, including several in the United Kingdom and several in the United
States. Complainant has been operating
under the domain name <nokia.com> since 1991. Respondent registered the domain name <mynokia.com> in January
2006.
DISCUSSION
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."
Respondent submitted a very brief electronic response, failed to submit a hard copy and failed to address the allegations in the Complaint at all. In view of Respondent's failure to submit a proper 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. See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that the respondent’s failure to submit a hard copy of the response and its failure to include any evidence to support a finding in its favor placed the respondent in a de facto default posture, permitting the panel to draw all appropriate inferences stated in the complaint). 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.
The Panel finds that Complainant’s registration with the USPTO and other trademark authorities sufficiently establishes Complainant’s rights in the NOKIA mark. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <mynokia.com> domain name is confusingly similar to Complainant’s
NOKIA mark, as the disputed domain name merely adds the generic word “my” to
the mark, insufficient to distinguish it from Complainant’s mark. See Arthur Guinness Son & Co. (Dublin)
Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing
similarity where the domain name in dispute contains the identical mark of the
complainant combined with a generic word or term); see also Sony Kabushiki
Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that
“[n]either the addition of an ordinary descriptive
word . . . nor the suffix ‘.com’ detract from the overall
impression of the dominant part of the name in each case, namely the trademark
SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Policy ¶
4(a)(i) has been satisfied.
Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent.”). Complainant’s proffered evidence satisfies the burden of making a prima facie showing, thus shifting the burden to Respondent to offer evidence of rights of legitimate interests in the domain name <mynokia.com>.
Respondent’s failure to submit a Response in this dispute creates a presumption Respondent lacks rights and legitimate interests in the disputed domain names. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise).
Furthermore, the Panel finds that
Respondent is not commonly known by the disputed domain name since there is no
evidence to support such a conclusion. See
Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating
“nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly
known by’ the disputed domain name” as one factor in determining whether Policy
¶ 4(c)(ii) applies); see also Am. Online, Inc. v. World Photo Video &
Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the
respondent was not commonly known by <aolcamera.com> or
<aolcameras.com> because the respondent was doing business as “Sunset
Camera” and “World Photo Video & Imaging Corp.”).
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Complainant has alleged that
Respondent acted in bad faith by registering the <mynokia.com>
domain name, and using the disputed domain name to redirect Internet users to
links to third-party websites for mobile phone products and services, including
ring tones, software, downloads, batteries and leather cases, in direct
competition with Complainant. The Panel
finds that such use constitutes a disruption of Complainant’s business and is
evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See
EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the
respondent registered and used the domain name <eebay.com> in bad faith
where the respondent has used the domain name to promote competing auction
sites); see also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
This
same Respondent was found to have registered and used the domain name
<nokia-usa.com> in bad faith
in a previous UDRP case, further evidence of bad faith in this case. See
Nokia Corporation v. MJK Communications Limited c/o Domain Admin, FA
601356 (Nat. Arb. Forum Jan. 16, 2006).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mynokia.com>
domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 11, 2006
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