Advanced Micro Devices, Inc. v. Softconcept SRL, Suciu Alexandru
Case No. DRO2008-0002
1. The Parties
The Complainant is Advanced Micro Devices, Inc., Austin, Texas, United States of America, represented by Cabinet M. Oproiu, Romania.
The Respondent is Softconcept SRL, Suciu Alexandru, Tirgu-Mures, Romania, represented per se.
2. The Domain Name and Registrar
The disputed domain name <amd.ro> is registered with National Institute of R&D on Informatics.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 29, 2008. On January 29, 2008, the Center transmitted by email to National Institute of R&D on Informatics a request for registrar verification in connection with the domain name at issue. On January 30, 2008, National Institute of R&D on Informatics transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on February 8, 2008. The Center verified that the Complaint together with the amendment to 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 February 21, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 12, 2008. The Response was filed with the Center on March 10, 2008.
The Center appointed Beatrice Onica Jarka as the sole panelist in this matter on March 25, 2008. 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.
The Panel concludes that, according to Rules, paragraph 11(b), the language of the proceedings shall be English for the following reasons:
- the Complainant has filed the complaint initially in English and at the Center’s request has provided a translation in Romanian of the initial complaint;
- there are no provisions on the Registrar’s website for a domain name applicant to choose between English or Romanian as the controlling language of the registration agreement at this moment, and in the past as this Panel found in other previous cases: Inter-IKEA Systems B.V. v. SC Agis International SportS.R.L., WIPO Case No. DRO2006-0001; DaimlerChrysler Corporation v. Web4COMM SRL ROMANIA,
WIPO Case No. DRO2006-0003; Companie Générale des Établissements Michelin - Michelin & Cie. v. IPSOS New Media Research SRL,
WIPO Case No. DRO2006-0004; Dell Inc. v. C.I.T. GRUP SRL,
WIPO Case No. DRO2007-0007, the registration agreement language was, at least until 2006, simultaneously English and Romanian. Therefore the domain name applicant has accepted the use of both languages (the disputed domain name was registered in 2000).
4. Factual Background
The Complainant is an American provider of innovative processing solutions in the computing, graphics and consumer electronic markets and of customer-focused solutions for technology users, ranging from enterprises and governments to individual consumers.
AMD created and introduced innovative technology products (high performing processors and microprocessors), such as: AMD-K6, AMD Athlon, AMD Turion, AMD Live. The Complainant is known as AMD, the acronym of Advanced Micro Devices.
The Complainant is the owner of 879 trademarks valid over the world, out of which, 15 trademarks containing AMD name are registered in Romania. All the trademarks registered in Romania as well as most AMDtrademarks registered around the world cover Nice class 9 including data processing equipment and computers, processors and microprocessors; conductors and semiconductors etc.
In addition, the Complainant has multiple registered domain names such as <amd.info>, <a-m-d.com>, <amd.eu> and has its principal website at: “www.amd.com”.
The Respondent is a Romanian company founded in 1999. The Respondent has registered the disputed domain name in 2000. The disputed domain name doest not currently resolve to any website.
5. Parties’ Contentions
A. Complainant
The Complainant contends that:
- it is known as AMD, the acronym of Advanced Micro Devices,
- the disputed domain name is completely identical to the Complainant’s trade name, its registered trademarks and to the main element of the registered domain names of AMD,
- AMD name and trademarks have become very well-known all over the world, including Romania and the Respondent choose “amd”name because it is seeking to create an impression of some kind of association with the Complainant,
- Advanced Micro Devices, Inc, the owner of the above rights, has never licensed or otherwise permitted the Respondent to apply for or use any domain name or trademark incorporating any of its marks,
- the disputed domain name was registered and is being used in bad faith, as the Respondent is engaged in similar or closely related business field ( see “www.s-concept.net”) as AMD is; therefore it is reasonable to believe that Softconcept has known the Complainant’s activity, its products and services as well as its famous AMD trademarks when registering the domain name,
- the disputed domain name has been used for promoting/marketing IT and related services with the intent to attract, for commercial gain, Internet users to the Respondent’s website, by creating confusion with the AMD’s trademarks and its business name or to get benefit by creating an impression of an affiliation or some sort of link to Advanced Micro Devices, Inc, its products or services.
B. Respondent
The Response had been submitted only in electronic form and in a mixture of English and Romanian language, and was not entirely compliant with paragraph 5(b) of the Rules. In accordance with paragraph 10(b) and (d) of the Rules, the Panel decides to take into consideration the Response as it was submitted.
According to the Response the Respondent asserts that:
- the disputed domain name has been legally registered with no bad faith intent, unfair competition or intent to use the name of the Complainant for the Respondent’s benefit,
- the disputed domain name has been registered for the online posting of a website representing a company set up by three persons, whose first letter of their surnames results Alexandru, Madalin, Daniel,
- the disputed domain name has been registered by Softconcept, Softconcept offering its own services to its clients but that the disputed domain name has no connection to Softconcept; and that the disputed domain name has never been used and shall never be used for promoting IT services or services connected to IT.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has registered various trademarks, verbal, individual or combined in which AMD appears either alone or in combination with other words and/or figurative elements. Several trademarks of this kind have been registered in Romania and some of them predate the registration of the disputed domain name.
Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar with trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Administrative Panel to be proved based on its evaluation of all evidence presented, shall demonstrate the domain name registrant’s rights or legitimate interests to the domain name for the purposes of paragraph 4(a)(ii) of the Policy:
“(i) before any notice to the domain name registrant of the dispute, the registrant's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the domain name registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if the registrant has acquired no trademark or service mark rights; or
(iii) the domain name registrant is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
In this case the Respondent affirmed circumstances indicating rights or legitimate interest of the Respondent in connection to the disputed domain name, but has not provided any evidence supporting such assertions.
In the Response, the Respondent indicated that the disputed domain name would correspond to the first letter of three persons' surnames: Alexandru, Madalin and Daniel who wanted to reflect by such domain name a company created by them. The Respondent has not provided any evidence indicating such a matter. Moreover the Panel has verified the National Office of Trade Register online database, where it appears that Softconcept SRL has two shareholders and not three and none of the three shareholders is called Madalin and Daniel.
The Respondent further asserts that the disputed domain name has no connection to Softconcept SRL, has never been used and shall never be used for promoting IT services or services connected to IT. The disputed domain name appears to be inactive. However, the Respondent’s assertions are contradicted by the Complainant’s evidence in connection to the content of the website to which the disputed domain name resolves in which it appears that the disputed domain name had been used as Softconcept SRL website for the promotion of Softconcept SRL services which are IT connected.
Therefore, the Panel considers that, based on its evaluation of all evidence presented, the Panel finds that the Respondent has no rights or legitimate interests to the disputed domain name.
C. Registered and Used in Bad Faith
It is the opinion of the Panel that the disputed domain name was on balance registered and used in bad faith.
The Complainant’s contentions and the Respondents assertions indicate that the Respondent likely acquired the disputed domain name in order to benefit from the Complainant’s trademark in the IT business. The disputed domain name is identical with the trademarks registered and used by the Complainant, which fact the Respondent must have known being in the same business as the Complainant. In addition, the Respondent has provided no evidence of any actual or contemplated good faith use.
As to the use in bad faith, the Panel has found that at the time of these proceedings the disputed domain name is inactive. However, the Complainant has provided evidence that the disputed domain name had been used by the Respondent for promoting/marketing IT and related services in the same field where the Complainant operates its business. Such past conduct amounts to bad faith use according to paragraph 4(b)(iv) of the Policy.
The passive holding may also be considered bad faith use of the disputed domain name in certain circumstances in which the Respondent has provided no evidence of any contemplated good faith use. (see Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055)
In the circumstances of this case and on the record the Panel has before it, the Panel concludes that the disputed domain name had been registered and used 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, <amd.ro> be transferred to the Complainant.
Beatrice Onica Jarka Sole Panelist
Dated: April 8, 2008
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