The Complainant is Deutsche Telekom AG of Bonn, Germany, represented by Lovells LLP, Germany.
The Respondent is Haschem Jagoda of Tel Aviv, Israel.
2. The Domain Name and Registrar
The disputed domain name <musicload.org> is registered with eNom, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2009. On July 9, 2009, the Center transmitted by email to eNom, Inc. a request for registrar verification in connection with the disputed domain name. On July 9, 2009, eNom, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on July 13, 2009. The Center verified that the Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 21, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2009. The Respondent did not submit a Response. Accordingly, the Center notified the Respondent's default on August 11, 2009.
The Center appointed Andrew Frederick Christie as the sole panelist in this matter on August 20, 2009. 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 one of Europe's largest telecommunications companies, covering the entire spectrum of modern telecommunications activities. It has an established presence in the major economic centres of the world, serving customers in more than 65 countries, with a focus on the most dynamic markets in Europe and the United States of America. The Complainant owns international and Community trademark registrations for MUSICLOAD, in various classes for a range of goods and services. The earliest application for these registrations dates from November 2003. The Complainant operates a commercial Internet portal offering downloads of music of all styles, using the MUSICLOAD trademark, at “www.musicload.de”. This service has approximately 3.8 million registered users, and a market share of approximately 32% in Germany. In June 2008 the Complainant began to internationalize the MUSICLOAD service, with the launch of music download portals at “www.musicload.at” and “www.musicload.ch”.
The disputed domain name was registered on January 25, 2009, by Mr. K. Jaeger. On March 26, 2009 the Complainant sent a cease-and-desist letter to Mr. K. Jaeger, requesting transfer to it of the disputed domain name. The Complainant sent a reminder letter to Mr. Jaeger on April 16, 2009. Mr. Jaeger responded on May 27, 2009, indicating that he would not transfer the domain name to the Complainant. Soon thereafter, the domain name was transferred to Mr. I. Ramirez. The Complainant sent a cease-and-desist letter to Mr. I. Ramirez on June 23, 2009, requesting transfer to it of the disputed domain name. It appears Mr. Ramirez responded on June 26, 2009, indicating that he would not transfer the disputed domain name to the Complainant. The Complainant filed a Complaint with the Center on July 8, 2009, naming Mr. I. Ramirez as the respondent. On July 9, 2009, apparently after receiving notification of the Complaint, Mr. I. Ramirez transferred the disputed domain name to Haschem Jagoda. In response to a notice from the Center indicating that the Complaint was administratively deficient by failing to name the current registrant of the disputed domain name as the respondent, the Complainant filed an Amended Complaint, naming Haschem Jagoda as the Respondent, on July 13, 2009.
At least as of March 6, 2009, the disputed domain name was used as the URL for a website providing free music downloads under the name “Musicload”. The website also contained various advertisement banners and links relating to the commercial file-sharing tool “UseNeXT”. On or before July 7, 2009, the URL for that website was changed to “http://www.musicloud.fm”. Around that time, the disputed domain name was used as the URL for another website that informs visitors that the music download portal has been moved to “http://www.musicloud.fm”, and that contains abusive statements about the Complainant.
5. Parties' Contentions
A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its MUSICLOAD trademark. In particular, because the disputed domain name incorporates the MUSICLOAD trademark, the disputed domain name wrongly represents that there is a connection or association between the domain name and the Complainant.
The Complainant contends that that the Respondent has no rights or legitimate interests in the disputed domain name. None of the circumstances listed under paragraph 4(c) of the Policy apply. The Respondent does not use the disputed domain name for a bona fide offering of goods or services; rather, the Respondent is using the disputed domain name to publish offensive criticism about the Complainant. Further, the Respondent is not making a legitimate non-commercial or fair use of the domain name, there is no indication that the Respondent has been commonly known by the disputed domain name, and the Respondent is not a representative or licensee of the Complainant or otherwise authorized to use the Complainant's MUSICLOAD trademark.
The Complainant contends that the Respondent registered and is using the disputed domain name in bad faith. In particular, the Complainant contends that the Respondent's bad faith registration of the disputed domain name is evidenced by the following facts. First, the website for which the disputed domain name is a URL expressly states that “the company [i.e. the Complainant] owns various trademarks that protect the name ‘musicload'”. This is a clear indication that the Respondent is aware of the Complainant and its MUSICLOAD trademark. Secondly, the disputed domain name was apparently registered by the Respondent one day after the Complaint was filed naming the immediately preceding registrant as the respondent. Despite the change in registrant, both the content of the website for which the disputed domain name is a URL and the email address of the registrant remained the same – indicating that the Respondent is somehow connected with the immediately preceding registrant, and thus is aware of the cease-and-desist letter sent by the Complainant to the immediately preceding registrant. Thirdly, the presence on the website for which the disputed domain name is a URL of abusive statements about the Complainant and a link to a free music download service indicates that the disputed domain name was registered primarily for the purpose of disrupting the business of the Complainant, which is evidence of the registration and use of the domain name in bad faith pursuant to paragraph 4(b)(iii) of the Policy.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is identical to the Complainant's registered trademark MUSICLOAD (once the “.org” is ignored). Thus, the Complainant has established that the disputed domain name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent is not associated with, or licensed by, the Complainant to use the MUSICLOAD trademark. The Respondent has not asserted that it has any rights or legitimate interest in the disputed domain name, and given that the disputed domain name is identical to the Complainant's registered and widely recognized trademark it is almost impossible to conceive on this record of any such rights or interests. This Panel is satisfied that the Respondent does not have any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The fact that the transfer of the disputed domain name to the Respondent followed straight after the filing of the Complaint against the immediately preceding registrant, as can be seen in the WhoIs information of eNom, Inc., and the fact that both the content of the website for which the disputed domain name is a URL and the email address of the registrant remained the same after the transfer, indicate that the Respondent is somehow connected with the immediately preceding registrant – which supports the conclusion that the Respondent was aware of the Complainant's trademark rights to MUSICLOAD when the Respondent registered the disputed domain name. This conclusion is put beyond doubt when account is taken of the wide recognition among consumers of the Complainant's MUSICLOAD trademark due to its substantial use, and of the acknowledgement on the website for which the disputed domain name is a URL that Complainant has trademarks protecting the “musicload” name. This conclusion, together with the fact that the website for which the disputed domain name is a URL contains abusive statements about the Complainant and a link to a free music download service, indicates that the Respondent registered the disputed domain name primarily for the purpose of disrupting the music download business of the Complainant. Pursuant to paragraph 4(b)(iii) of the Policy, this is evidence of the registration and use in bad faith of the disputed domain name. This Panel is satisfied that the Respondent registered and is using the disputed domain name in bad faith.
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 <musicload.org> be transferred to the Complainant.
Andrew Frederick Christie Sole Panelist
Dated: September 2, 2009
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