WebEx Communications, Inc. v. Developer Guan
Claim Number: FA0612000873144
Complainant is WebEx Communications, Inc. (“Complainant”), represented by Johanna
F. Sistek, of Sistek Law Group,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <webexnow.com>, registered with Communigal Communications Ltd.
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.
James A. Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 18, 2006; the National Arbitration Forum received a hard copy of the Complaint on December 21, 2006.
On December 19, 2006, Communigal Communications Ltd confirmed by e-mail to the National Arbitration Forum that the <webexnow.com> domain name is registered with Communigal Communications Ltd and that Respondent is the current registrant of the name. Communigal Communications Ltd has verified that Respondent is bound by the Communigal Communications Ltd 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 December 21, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 10, 2007 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@webexnow.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 16, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Crary 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." 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 makes the following assertions:
1. Respondent’s <webexnow.com> domain name is confusingly similar to Complainant’s WEBEX mark.
2. Respondent does not have any rights or legitimate interests in the <webexnow.com> domain name.
3. Respondent registered and used the <webexnow.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, WebEx Communications, Inc., is a company that specializes in production and servicing of software for transmitting information over the Internet. In connection with the provision of these services, Complainant has registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”) including the WEBEX mark (Reg. No. 2,012,292 issued September 30, 1997).
Respondent registered the <webexnow.com> domain name on October 7, 2005. The website resolves to Respondent’s website, which provides links to Complainant’s own website and those of Complainant’s competitors.
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 asserts rights in the WEBEX mark through
registration with the USPTO. The Panel
finds that Complainant’s registration and use of the WEBEX mark is sufficient
to establish rights in the mark pursuant to Policy ¶ 4(a)(i). See
Complainant claims Respondent’s <webexnow.com> domain name is confusingly similar to
Complainant’s WEBEX mark. The disputed
domain name incorporates Complainant’s mark in its entirety and adds the
generic term “now.” The Panel finds that
the addition of a generic term to an otherwise identical mark fails to
distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Westfield
Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the
<westfieldshopping.com> domain name confusingly similar because the
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent lacks rights and legitimate interests in the <webexnow.com> domain name. In instances where the Complainant has made a prima facie case under Policy ¶ 4(a)(iii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent is using the disputed domain name to direct Internet users to a series of links, including a link to Complainant’s own website as well as those of Complainant’s competitors. The Panel finds that such use is not a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Sony Kabushiki Kaisha v. Domain rajadomain@yahoo.com +1.415.0, FA 128701 (Nat. Arb. Forum Dec. 16, 2002) (finding that the respondent’s use of its domain name in order to divert Internet users to a website that offers search engine services and links to adult orientated websites was not considered to be in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii)).
Complainant alleges that Respondent is neither commonly
known by the <webexnow.com>
domain name nor authorized to register domain names that feature Complainant’s
WEBEX mark in any way. Without evidence
to suggest otherwise, the Panel finds that Respondent has not established
rights or legitimate interests in accordance with Policy ¶ 4(c)(iii). See 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.”); see also Wells Fargo & Co.
v. Onlyne Corp. Services11, Inc., FA
198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information
for the disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <webexnow.com> domain name to divert Internet users to its own website, which provides a link to Complainant’s own website as well as links to a series of Complainant’s competitors, presumably with the goal of receiving commercial benefit. The Panel finds that Respondent’s diversion for commercial gain evinces bad faith pursuant to Policy ¶ 4(b)(iv). See Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”); see also TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”).
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 <webexnow.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Crary, Panelist
Dated: January 30, 2007
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