Complainant is Samsung Electronics Co., Ltd., of Suwon City, Gyeonggi-Do, Republic of Korea, represented by You Me Patent & Law Firm, Republic of Korea.
Respondent is COSMOS1, of St. Petersburg, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <samsumg.com> is registered with eNom, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2007. On June 29, 2007, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the domain name at issue. On July 3, 2007, eNom, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant. The Center verified the contact details for Respondent by doing a lookup at eNom Inc.’s Whois service. 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 July 11, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2007. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 9, 2007.
The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on August 28, 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 trademark upon which the Complaint is based is SAMSUNG. According to the documentary evidence and contentions submitted, Complainant directly or through its affiliates owns a number of trademark registrations for the SAMSUNG trademark around the world, including Russia Federation and the United States of America. The <samsung.com> domain name was registered on November 29, 1994, by one of Complainant’s Korean affiliates.
According to the contentions submitted, Complainant is the holding company of the Samsung Group, an internationally recognized organization established in the early 1930’s and engaged in the business of manufacturing and selling a variety of electronics products, one of which are mobile phones.
Respondent appears to have registered the disputed domain name on May 9, 2000.
5. Parties’ Contentions
A. Complainant
Complainant contends that the domain name <samsumg.com > is confusing similar to the name “Samsung” in which Complainant has rights, and that the use of the letter “m” instead of the letter “n” does not prevent users from accidentally mistaking the domain name as being the Complainant’s name. Complainant also argues that the disputed domain name is confusingly similar to the <samsung.com> domain name.
Complainant further contends that Respondent does not have rights or legitimate interests regarding the disputed domain name because (i) Respondent is not affiliated with Complainant, has not been authorized to use and register the SAMSUNG trademark or any domain name incorporating said mark; (ii) Respondent is not making any legitimate or fair use of the disputed domain name nor has Respondent any legitimate right or interest to do so; and (iii) Respondent’s use of the website to which the disputed domain name resolves is intended to create an association with Complainant.
Complainant further contends that Respondent registered the disputed domain name knowing that users would easily mistake the name as belonging to Complainant, thereby attracting attention to its website even after discovering that the spelling of “samsumg” was different from the spelling of “samsung”. In addition, Respondent used the pop up windows in Respondent’s website to attract users to gambling site for an assumed economic benefit. Complainant further argues that Respondent is in a position where it is able to interrupt the true business of Complainant and adversely affect its reputation.
B. Respondent
Respondent did not reply to the Complainant’s contentions.
6. Discussion and Finding
A. Effect of the Default
The consensus view is that the respondent’s default does not automatically result in a decision in favor of complainant and that complainant must establish each of the three elements required by paragraph 4(a) of the UDRP (WIPO Overview of WIPO Panel Views on Selected UDRP Questions,
para. 2.2). However, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.
This Panel finds that there are no exceptional circumstances for the failure of Respondent to submit a Response. As a result, the Panel infers that Respondent does not deny the facts asserted and contentions made by Complainant from these facts. Reuters Limited v. Global Net 2000, Inc,
WIPO Case No. D2000-0441. LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084. Ross-Simons, Inc. v. Domain.Contact,WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by Complainant. Reuters Limited v. Global Net 2000, Inc,
WIPO Case No. D2000-0441. RX America, LLC. v. Matthew Smith,WIPO Case No. D2005-0540.
B. Laches
The Panel notes that the disputed domain name was registered on May 9, 2000, and that the Complaint was filed on June 29, 2007. The question which arises is whether the elapse of 7 years from the domain name registration date prevents Complainant from commencing an administrative proceeding against Respondent under the Policy.
The Panel recognizes that the issue has been addressed in previous UDRP decisions and that the doctrine of laches or estoppel would not appear to have been applied to the Policy proceedings. “Estoppel has rarely been raised as a defense in a proceeding under the Policy, and to this panel’s knowledge has never been the basis for denying a complaint when all elements of the Policy were established”, Justice for Children v. Rneetso/Robert W. O’Steen,
WIPO Case No. D2004-0175. See also Tax Analysts v. eCorp,
WIPO Case No. D2007-0040.
As decided in Tom Cruise v. Network Operations Center/Alberta Hot Rods,
WIPO Case No. D2006-0560, “[w]ithout some substantial evidence to indicate that Complainant approved of or condoned Respondent’s use of his mark in the disputed domain name, the Panel is not prepared to import a bar against his cause of action”.
The Panel will now review each of the three cumulative elements set forth in paragraph 4(a) of the Policy to determine whether Complainant has complied with such requirements.
C. Identical or Confusingly Similar
The conduct by Respondent is argued by Complainant to be a kind of “typosquatting” or “spoofing” where previous UDRP decisions found that there was confusing similarity.
In fact, <samsumg.com> is a slight variation from the SAMSUNG registered trademark in which the letter “n” was replaced by the letter “m”. As a result, this is an example of confusing similarity brought about through easily made typing errors made by an Internet user: rather than typing <samsung.com> to visit Complainant’s website, an Internet user could easily type <samsumg.com> and be diverted to a different website.
The Panel takes into account previous UDRP decisions relating to the practice of “typosquatting” where such practice has consistently been regarded as creating domain names confusingly similar to the relevant mark. This is a well-established point. ACCOR v. Brigit Klostermann, WIPO Case No. D2005-0627; Sharman License Holdings, Limited v. IcedIt.com, WIPO Case No. D2004-0713; Ross-Simons, Inc. v. Domain.Contact, WIPO Case No. D2003-0994.
That is particularly true where the trademark is highly recognizable and famous, as in the instant case.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
D. Rights or Legitimate Interests
The Panel accepts Complainant’s contention that Respondent is not affiliated with Complainant and has not been authorized to use and register the SAMSUNG trademark or any domain name incorporating said mark. The Panel also finds that Respondent is not making any legitimate or fair use of the disputed domain name nor has Respondent any legitimate right or interest to do so.
As a result of an independent access to the “www.samsumg.com” website made on September 7, 2007, the Panel noted that the disputed domain name is apparently inactive. However, until recently that domain name led to a website where its automated link directly to “www.usseek.com” opened up with a list of web pages showing “samsung electronics” search results. Reference is made to Annex F of the Complaint.
Therefore, the Panel concludes that Respondent has chosen the contested domain name to profit from the reputation of the SAMSUNG trademark and from the traffic generated by users who mistakenly typed <samsumg.com> instead of <samsung.com>.
Finally, the Panel finds that Complainant has established that Respondent lacks rights to or legitimate interests in the disputed domain name. It has been established by previous UDRP decisions that, “while the overall burden of proof rests with the complainant, the burden of proof shifts to the respondent where the complainant establishes a prima facie case showing lack of rights and legitimate interests of the respondent to the disputed domain name”. Caixa d’Estalvis i Pensions de Barcelona (“La Caixa”) v. Young N,
WIPO Case No. D2006-0406; Croatia Airlines d.d. v. Modern Empires Internet Ltd.,
WIPO Case No. D2003-0455.
Respondent has failed to provide the Panel with any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that Respondent has any rights or legitimate interests in the disputed domain name. Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.
In light of the foregoing, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met.
E. Registered and Used in Bad Faith
The Panel finds that Respondent could not have ignored the existence or the reputation of the SAMSUNG trademark and that Respondent’s motivation was to take advantage of the prestige of the Complainant’s trademark. The Panel concurs with previous WIPO UDRP decisions holding that registration of a well-known trademark as a domain name is a clear indication of bad faith in itself, even without considering other elements. As decided before, “knowledge of a corresponding mark at the time of registration of the domain name suggests bad faith”. Caixa D´Estalvis i Pensions de Barcelona (“La Caixa”) v. Eric Adam,
WIPO Case No. D2006-0464; Reuters Limited v. Global Net 2000, Inc,
WIPO Case No. D2000-0441.
Accordingly, the Panel concludes that Respondent registered the disputed domain name in bad faith.
The Panel takes further the view that the content of a website is relevant in the finding of bad faith use. The materials extracted from Respondent’s website and produced by Complainant indicate that Respondent registered the disputed domain name to profit from the reputation of the SAMSUNG marks. As decided in a previous WIPO UDRP decision, “[t]he proper test in this Panel’s view is whether the objective consequence or effect of the Respondent’s conduct is to free-ride on the Complainant’s goodwill, whether or not that was the primary (subjective) intent of the Respondent. In light of the above, the Panel concludes that knowledge of the mark at the time of registration followed by use in commerce without a legitimate interest and likely to create confusion (and thus allow the Respondent to free-ride on the Complainant’s goodwill), is the proper test”. See Paule Ka v. Paula Korenek,
WIPO Case No. D2003-0453.
The Panel also concurs with the understanding of other WIPO UDRP panels that the use of a domain name to point to a website that offers search engine services and links to other websites may suggest bad faith. Mudd, (USA) LLC v. Unasi, Inc. (MUDDPRODUCTS-COM-DOM),
WIPO Case No. D2005-0591; Volvo Trademark Holding AB v. Unais, Inc.,
WIPO Case No. D2005-0556. Accordingly, the Panel concludes that Respondent is also using the disputed domain name in bad faith.
Therefore, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy is met.
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 <samsumg.com> be transferred to Complainant.
Manoel J. Pereira dos Santos
Sole Panelist
Dated: September 10, 2007
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