Danware Data A/S v. Texas International Property Associates
Case No. D2007-0945
1. The Parties
The Complainant is Danware Data A/S, of Birkerod, Denmark, represented by Philip & Partners, Denmark.
The Respondent is Texas International Property Associates, of Dallas, Texas, United States of America, of United States of America, represented by Law Office of Gary Wayne Tucker, United States of America.
2. The Domain Name and Registrar
The disputed domain name <wwwnetop.com> is registered with Compana LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2007. On June 29, 2007, the Center transmitted by email to Compana LLC a request for registrar verification in connection with the domain name at issue. On July 18, 2007 Compana LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. However, despite multiple reminders, the Registrar neglected to answer the specific questions raised by the Center on the status of the domain name, e.g. indicate the expiry date of the disputed domain name, indicate that the disputed domain name is not pending deletion and whether the disputed domain name is locked for the purpose of the proceedings. The Center proceeded based on the Complaint and on the information on the public Whois database. In the absence of a reply to these questions by the Registrar, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Respondent of the Complaint, and the proceedings commenced on August 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 15, 2007. The Response was filed with the Center on September 16, 2007.
The Center appointed Fleur Hinton as the sole panelist in this matter on September 25, 2007. 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
The Complainant is Danware Data A/S, a legal entity existing under the laws of the Kingdom of Denmark. The dispute concerns the domain name <wwwnetop.com> which has been registered by the Complainant in the United States of America and in various other countries throughout the world although only the details of the US registration have been annexed to the complaint. The Complainant is in the business of developing software to facilitate the remote control of computers and firewalls. It is the registrant of the domain names <netop.com>, <netop.dk> and <netop.it>.
On July 8, 2006, the Respondent registered the domain name <wwwnetop.com>. The website at this address directs visitors to links to various other vendors of similar types of products and this content is available to Danish users in the Danish language.
On May 23, 2007, the Complainant sent an email to the Respondent requiring that it discontinue this use. The Complainant received an acknowledgement indicating that the email had been forwarded to the Respondent’s legal counsel and that the Complainant would receive a replay within 15-21 days. No reply has ever been received and on June 7, 2007, the Complainant wrote the Respondent stating that the matter would be referred to the Center.
5. Parties’ Contentions
A. Complainant
The Complainant is of the view that the Respondent has registered the disputed domain name in order to take advantage of the Complainant’s customers who inadvertently omit the period when intending to enter the Complainant’s web url into the browser and that the Respondent’s aim is to take advantage of these typographical errors. Once having reached the Respondent’s website in error, such people may not realize that they are not on the Complainant’s website because the types of products on offer and the links provided by the Respondent’s website are so similar. The Complainant, therefore, is of the view that the Respondent’s webpage is a clear example of typosquatting. The Complainant believes that its business is being seriously damaged.
B. Respondent
The Respondent does not deny any of the allegations made by the Complainant. However, it does not admit any of the elements of paragraph 4(a) of the policy. It states merely that it is prepared to transfer the domain name to the Complainant on a unilateral basis and states that it will, upon order of the Panel, attend to the transfer.
It refers to the case of The Cartoon Network LP, LLLLP v. Mike Morgan, WIPO Case No. D2005-1132 of January 5, 2006 in which the Panel noted that there were various ways in which the Panel could proceed in a case where the Respondent has made an offer to transfer.
Despite this submission, in the present case, the Panel has decided to adopt the approach taken in (Koninklijke PhilipsElectronics N.V. v. Manageware,WIPO Case No. D2001-0796) and to consider the three elements necessary under paragraph 4(a) since the Respondent has not made any admissions. It is the view of the Panel that this is the most appropriate way to proceed for two reasons: firstly because the purpose of the URDP is to deter people from profiting from the business success of others; secondly because the Respondent received a warning from the Complainant and chose to ignore it. As a result of that the Complainant has been put to the time and expense of instructing its lawyers and paying for this decision.
6. Discussion and Findings
In order to arrive at its decision, the Panel must consider the elements set out in paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Complainant alleges that its trademark and domain name <netop.com> is identical or confusingly similar to the disputed domain name <wwwnetop.com>. The Panel agrees with this assertion; the only difference between the two names is the Respondent’s addition of ‘www’ which is not designed to distinguish between the two names. Rather, it is designed to lure potential web visitors who omit the full stop to the Respondent’s website.
The Panel finds that this criterion has been satisfied.
B. Rights or Legitimate Interests
The Complainant has made a prima facie showing of Respondent’s lack of rights on legitimate interests. The Respondent has not submitted any evidence to demonstrate that the Respondent has a right of legitimate interest to the disputed domain name <wwwnetop.com> and, in view of the fact that the Respondent’s name is Texas International Property Associates, there is no reason on which it can be assumed that the Respondent has such a right or interest. Based on the record, the Panel finds that this criterion has been satisfied.
C. Registered and Used in Bad Faith
In addition to the criteria in A and B above, it is clear from the content of the Respondent’s website that its aim is to attract those people who may have a interest in the Complainant’s business and the effect of the Respondent’s website must be to cause confusion. In the absence of any information or submissions on this point from the Respondent, the Panel draws the conclusion that the third criterion under 4(a) of the Policy has also been satisfied.
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 <wwwnetop.com> be transferred to the Complainant.
Fleur Hinton Sole Panelist
Dated: October 10, 2007
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