***IDENTICAL OR CONFUSINGLY SIMILAR - paragraph 4(a)(i) of the Policy***
The disputed Domain Name 'nexum.com' consists of the Complainant's NEXUM mark combined with the '.com' suffix.
The '.com' suffix may be disregarded when it comes to considering whether a domain name is identical or confusingly similar to a trade mark in which the Complainant has rights.
As a result, the Panel concludes that the disputed Domain Name is identical to a trade mark in which the Complainant has rights within the meaning of paragraph 4(a)(i) of the Policy.
***RIGHTS OR LEGITIMATE INTERESTS - paragraph 4(a)(ii) of the Policy***
The Respondent failed to file an administratively compliant (or any) response. In the circumstances the Panel finds from the facts put forward that:
The Respondent does not appear to have any trade marks associated with the NEXUM mark.
There is no evidence that the Respondent is commonly known by the NEXUM mark, and the Respondent does not have any consent from the Complainant to use the NEXUM mark.
There is no evidence to show the Respondent may have used the disputed Domain Name for any bona fide offering of goods or services of its own. The third party links on the Respondent's website attached to the Domain Name appear to the panel to compete in some way or other with the Complainant's services, particularly its SEO services. This is not a bona fide offering of goods and services under 4(c)(i) of the Policy and it is not a legitimate non-commercial or fair use under 4(c)(iii) of the Policy. See AM Int'l Group Inc. v Benjamin, FA 9442542 (Nat. Arb Forum May 11, 2007) finding that the respondent's use of a domain name to advertise services which competed with the complainant's business did not constitute a bona fide offering of goods and services under paragraph 4(c)(iii) of the Policy.
On the balance of probabilities, and in the absence of any evidence to the contrary (or any administratively compliant response at all) being put forward by the Respondent, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name within the meaning of paragraph 4(a)(ii)of the Policy.
***REGISTERED AND USED IN BAD FAITH - paragraph 4(a)(iii) of the Policy***
Paragraph 4(b) of the Policy sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain (click through income or otherwise), Internet users to its web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its website or location.
On the balance of probabilities, and in the absence of any evidence to the contrary (or any administratively compliant response at all) being put forward by the Respondent, the Panel believes from the facts in this case that the Respondent had the Complainant's NEXUM mark in mind when registering and subsequently using the Domain Name. The evidence of the Respondent's website shows that the site contained commercial links to SEO related websites. See Pfizer Inc. v Suger 02002-0187 (WIPO Apr 24, 2002) finding the link between the complainant's mark and the content advertised on the respondent's website was obvious, and therefore the respondent must have known about the complainant's mark when it registered the disputed Domain Name.
The Panel therefore finds that the Respondent has attempted to attract and cause confusion amongst Internet users between the Complainant's NEXUM mark, and that the competing third party links on the website attached to the Domain Name are likely to be for commercial gain in that it is likely to be earning click-through income for the Respondent. See AOL LLC v AIM Profiles, FA 964479 (Nat Arb Forum May 20, 2007) finding registration and use of the disputed domain name in bad faith pursuant to paragraph 4(b)(iv) of the Policy because the respondent was commercially gaining from the likelihood of confusion between the complainant's mark and the competing instant messaging products and services advertised on the respondent's website attached to the disputed domain name.
As such, the Panel finds that the Domain Name is likely to have been registered intentionally to attempt to attract, for commercial gain, Internet users to the web site hosted at the Domain Name, by creating a likelihood of confusion with the Complainant's NEXUM trade mark (paragraph 4(b)(iv) of the Policy), and therefore the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
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