International Business Machines Corporation (IBM) just lost a UDRP in an attempted grab of the domain name OpenPower.org against White Label Energy GmbH
The UDRP decision was originally published in German.
Although IBM had a trademark on the term OPEN POWER which predated the domain name registration by some five years, the one member panel noted that IBM abandoned its Open Power product in 2006 and therefore found its was unlikely that the domain holder had the trademark in mind when it registered the domain.
Here are the relevant facts and findings by the panel:
The trademark was registered on November 21, 2005.
The disputed domain name was registered August 19th, 2010.
The corresponding website contains only the following note: “The following updates installed, please come back later.”
It is also noteworthy that “OpenPower” was used by the appellant to two models to market a range of servers (IBM eServer OpenPower 710/720).
However, as the complainant notifies on their own site, the corresponding products 31 were May be withdrawn from the market in 2006
That in 2013 there is still some need for support services for these products or something similar, may be doubted.
It is thus (as claimed by the Respondent) assume that the characteristics of the complainant is not at all brand currently used moderately.
Accordingly, it is plausible that the Respondent in registering the disputed domain name in 2010 as alleged had no knowledge of the brand of the complainant.
It is also credible that the Respondent <openpower.org> the disputed domain name in connection with service committed to public services utilities.
It already has the company name “White Label Energy GmbH” way.
That the Respondent has the hearing of its director and representatives of their clients offered to prove you can not penalize. The Respondent is obviously not familiar with UDRP proceedings and could not therefore imagine that in such proceedings no witnesses can be questioned.
Although ultimately the disputed domain name resolves to a website with the sole indication “There are updates installed, please little later come back,” it is understandable that the Respondent the disputed domain name (as claimed) for the e-mail communication with their customers and used for applications via subdomains.
Against this background, the Respondent has a legitimate interest in the use of the disputed domain name, the appeal panel’s view. Anyway, the appeal panel can not detect a higher value to the appellant interest on issue (composed of descriptive terms) domain name. The complainant has therefore paragraph 4 (a) (ii) does not satisfy the policy.
F. Respondent registration and use of the domain name
The sake of completeness it should be mentioned that for the same reasons described above no bad faith registration and use of the disputed domain name pursuant to paragraph 4 (a) (iii) is present.””
