WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Herbert Hänchen GmbH & Co. KG v. Emir Ulu Case No. D2009-0079 1. The Parties
The Complainant is Herbert Hänchen GmbH & Co. KG of Ostfildern, Germany, represented by Bongen, Renaud & Partner, Germany.
The Respondent is Emir Ulu of Kayseri, Turkey. 2. The Domain Name and Registrar
The disputed domain name () is registered with PSI-USA, Inc dba Domain Robot. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 21, 2009 by e-mail and on January 26, 2009 in harcopy. On January 22, 2009, the Center transmitted by e-mail to PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain name. On January 23, 2009, PSI-USA, Inc. dba Domain Robot transmitted its verification response to the Center by e-mail, confirming that the Respondent is listed as the registrant and providing the contact details. 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 January 29, 2009. In accordance with the Rules, paragraph 5(a), the due date for the Response was February 18, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on February 19, 2009.
The Center appointed the undersigned as the sole panelist in this matter on February 27, 2009. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence on February 26, 2009, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is Herbert Hänchen GmbH & Co. KG, a company which produces and sells hydraulic cylinders for the automobile industry since its foundation in 1925.
The Complainant is the owner of the following trademark registrations:
- HÄNCHEN (word/device), registered with the OHIM on March 10, 1999 (filed on April 1, 1996), under Registration Number 220798;
- HÄNCHEN (word/device), registered with the German Patent and Trademark Office on July 2, 1986 (filed on December 17, 1984), under Registration Number 1093377;
- HÄNCHEN (word/device), registered with the German Patent and Trademark Office on October 21, 2004 (filed on August 11, 2004), under Registration Number 30446536.4;
- HÄNCHEN (word/device), registered with the German Patent and Trademark Office on November 27, 1970 (filed on July 24, 1970), under Registration Number 875544.
The Respondent registered the disputed domain name on May 18, 2004. 5. Parties' Contentions A. Complainant
Identical or confusingly similar
According to the Complainant, the domain name is identical or confusingly similar to the trademark HÄNCHEN. Referring to previous UDRP cases, the Complainant emphasizes that the fact that the domain name is a translation by i-nav Software from does nothing to change this.
Rights or Legitimate Interests
The Complainant states that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant contends that there is no evidence of the Respondent's use or demonstrable preparations to use the domain name and that the Respondent is not offering goods or services under the domain name, but only parking the domain name itself. The Complainant asserts that there is no other evidence showing a noncommercial or fair use of the domain name either. The Complainant submits evidence, which consists of a printout of the Respondent's website of January 19, 2009 in the English language (the language can be selected). This printout shows a website with sponsored listings provided by Sedo's Domain Parking, a facilitator of domain name parking pages. On the website, there is a link with the text “this domain name may be for sale by its owner.” Additionally, the Complainant submits as evidence a screenshot of the Respondent's website in the German language. This contains a link with the text: “Die Domain wird vom Inhaber zum Verkauf angeboten”. Further, the German version of the website contains among others sponsored links to websites of competitors of the Complainant.
The Complainant states that the Respondent is not commonly known by the domain name, nor is he the owner of any trademarks or service marks similar to the disputed domain name.
Furthermore, the Complainant contends that it has not given the Respondent permission or license to use the HÄNCHEN trademarks in the domain name and that there is no relationship between the Complainant or any of its subsidiaries and the Respondent.
Registered and Used in Bad Faith
The Complainant asserts that the Respondent registered and uses the disputed domain name in bad faith since the Respondent only has a commercial interest in selling the domain name and not in using the domain name other than as a parking page. The Complainant refers to the printout and screenshot from the Respondent's website and a screenshot and printout of January 19, 2009 from the website . On both websites, the disputed domain name is offered for sale.
Further, the Complainant contends that the Respondent registers domain names similar to well-known trademarks to benefit financially. The Complainant refers to several UDRP cases in which the panel ordered a transfer of domain names of the Respondent which were similar to (well-known) trademarks (Audi AG v. Emir Ulu,WIPO Case No. D2005-1030; Volkswagen AG v. Emir Ulu,WIPO Case No. D2005-0987; Rotkäppchen Setkellnerei GmbH v. Emir Ulu,WIPO Case No. D2005-0374; Würtembergische Versicherung AG v. Emir Ulu,WIPO Case No. D2006-0278). Referring to evidence consisting of a screenshot from the website “”, the Complainant also states that the Respondent is the registrant of more than 500 domain names.
In addition, the Complainant asserts that the absence of rights and legitimate interests in the HÄNCHEN trademark and the lack of any contradictory evidence of the Respondent suggest opportunistic bad faith (the Complainant refers to Audi AG v. Emir Ulu, supra). B. Respondent
The Respondent did not file a Response. 6. Discussion and Findings A. Identical or Confusingly Similar
The domain name is identical, or at least confusingly similar, to the trademark HÄNCHEN. The fact that the German letter “ä” is translated from the code by i-nav Software does not alter this, as panels have recognized before (Must-Jägermeister AG v. GlazedDonuts,WIPO Case No. D2005-0034; Würtembergische Versicherung AG v. Emir Ulu, supra; Rotkäpchen Sektkellerei GmbH v. Emir Ulu, supra). Further, it is the consensus view that the generic top level domain “.com” is not a factor in considering identity or confusing similarity (see e.g. Ruby's Diner, Inc. v. Joseph W. Popow,WIPO Case No. D2001-0868). B. Rights or Legitimate Interests
Paragraph 4(c) of the UDRP provides that any of the following circumstances, if proven, can demonstrate Respondent's rights or legitimate interests in respect of a domain name:
(i) before any notice of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with bona fide offering of goods or services;
(ii) the respondent has been commonly known by the domain name, even if he has acquired no trade mark rights; and
(iii) the respondent 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 trade mark at issue.
The Complainant has made a prima facie case that the Respondent does not have an own right or legitimate interest in the domain name.
A finding of noncommercial use of the domain name is excluded by the fact that the Respondent is using the domain name for a parking page where the domain name is offered for sale and from which the Respondent is presumably receiving pay-per-click revenues. There is no evidence that the Respondent has been commonly known by the domain name or that he was given permission by the Complainant to register or use the domain name.
The Complainant submitted evidence that the Respondent is the owner of over 500 domain names and that he was ordered to transfer domain names incorporating (well known) trademarks in several WIPO cases. This, together with the fact that the disputed domain name is used for a parking page with sponsored links where the domain name itself is offered for sale, is evidence that the domain name has been registered and is used for its trademark value. The Panel is of the opinion that this use is indicative of “cybersquatting”. Therefore, the use of the domain name cannot be considered as bona fide either (see likewise mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc.,WIPO Case No. D2007-1141; Western Union Holdings, Inc. v. Technology Co., Ltd., WIPO Case No. D2008-0590; MBI, Inc. v. Moniker Privacy Services/Nevis Domains LLC,WIPO Case No. D2006-0550).
Since the Respondent has not filed a Response and therefore not provided any counter evidence, the Panel concludes that the Complainant has proven that the Respondent does not have an own right or legitimate interest in the domain name. C. Registered and Used in Bad Faith
The Panel finds it plausible that the Respondent was aware of the Complainant and its trademark (and tradename). It is uncontested that the Complainant has produced and sold hydraulic cylinders since 1925. Further, it is uncontested that it uses the HÄNCHEN trademarks for its products and that the first HÄNCHEN trademark was registered on November 27, 1970, which is more than 33 years prior to the registration of the disputed domain name on May 18, 2004. Furthermore, evidence submitted by the Complainant in the form of a printout and screenshot of the Respondent's website shows that this website contains sponsored links to websites of third parties where hydraulic cylinders are offered for sale, including direct competitors of the Complainant.
In addition, the Respondent was a party in several UDRP “.com” domain name disputes concerning third party trademarks, in which the panels ordered a transfer because they held that the Respondent had registered or used the domain name in bad faith (see Audi AG v. Emir Ulu, supra; Volkswagen AG v. Emir Ulu, supra; Rotkäppchen Setkellnerei GmbH v. Emir Ulu, supra; Würtembergische Versicherung AG v. Emir Ulu, supra). The Complainant has also submitted evidence that the Respondent is the owner of over 500 domain names and that it offers the disputed domain name for sale on its website.
Taking into account these facts, it is difficult to conceive that the Respondent was not aware of the Complainant's trademark at the time of registration of the disputed domain name. Therefore, the Panel finds that the domain name was registered in bad faith.
The domain name is also being used in bad faith. Given the fact that the domain name is identical to the Complainant's trademarks and that the website contains links to third party websites (amongst others competitors of the Complainant) where competing services are offered, the Panel is of the opinion that the Respondent uses the domain name to intentionally attract, for commercial gain, Internet users to its website or another on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location (see MBI, Inc. v. Moniker Privacy Services/Nevis Domains LLC, supra; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., supra). 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 () be transferred to the Complainant.
Wolter Wefers Bettink
Sole Panelist
Dated: March 10, 2009
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