The Complainant is Rittal GmbH & Co. KG of Herborn, Germany represented by Boehmert & Boehmert, Germany.
The Respondent is Inovosys of Redmond, Washington, United States of America. 2. The Domain Name and Registrar
The disputed domain name, (the “Domain Name”), is registered with FastDomain, Inc (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2012. On March 13, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 14, 2012, the Registrar transmitted by email to the Center its verification response 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” 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 March 16, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was April 5, 2012. The Respondent sent an informal communication to the Center on April 8, 2012, but has not filed a formal Response in time or at all. The informal communication indicated that a Response would be filed, but nothing further has been heard from the Respondent.
The Center appointed Tony Willoughby as the sole panelist in this matter on April 16, 2012. 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 a German company established in 1961 and one of the market leaders internationally in the field of switchgear cabinets. It is also engaged in a wide variety of other goods and services including electronic packaging, power distribution, system climate control and IT and Communications systems.
The Complainant is the registered proprietor of a large number of trade mark registrations of or including the name/word “Rittal”. For present purposes it is sufficient to mention just two of those registrations, namely:
Community Trade Mark No. 001109651 dated March 16, 1999 (registered June 26, 2000) RITTAL (word) in classes 9, 11 and 42 for various goods and services in its fields of operation.
United States Trade Mark No. 2621838 dated December 22, 1999 (registered September 17, 2002) RITTAL (device mark) for a similar range of goods and services.
The Domain Name was registered on August 4, 2010 and is connected to a website of a company, which appears from the 2012 copyright notice featured on the site to be named Rittal Technology Company. The company is also referred to on the site as “Rittal Technology Company Limited”, “rittal Technology” and in the abbreviated form, “Rittal”. Under the “About Us” heading the company is described as follows:
“Rittal is a joint venture company between MATS Co. and Bajafar Group established to implement key projects in Sudan and neighbouring countries.”
On September 21, 2011 the Complainant’s representatives wrote to the Respondent drawing the Respondent’s attention to the Complainant’s rights and seeking cancellation of the Domain Name. The Respondent did not respond to that letter. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to the Complainant’s RITTAL trade mark registrations, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered the Domain Name and is using it in bad faith. B. Respondent
The Respondent did not respond with a formal Response, but on April 8, 2012 emailed the Center in the following terms:
“This is to let you know that attorney will contact you regardingWIPO Case No. D2012-0489.
R does not compete in the same or similar business as the complaint company
The domain name was picked, available and registered with for close to two years.
This is an unfair treatment to a small start up company.
R is in the process to complete a full and through response forWIPO Case No. D2012-0489” 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith. B. Identical or Confusingly Similar
In assessing identity and confusing similarity for the purposes of paragraph 4(a)(i) of the Policy it is permissible for the Panel to exclude from consideration the generic “.com” domain suffix.
Absent the generic “.com” domain suffix the Domain Name comprises the Complainant’s registered trade mark, the generic term “tech”, which does not serve to dispel any confusing similarity between the Complainant’s trade mark and the Domain Name and nothing else. The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
On the unchallenged evidence of the Complainant it appears that the Complainant’s RITTAL brand is internationally well-known and in fields which to some extent appear to overlap with those of the company using the Domain Name.
The Respondent, a United States based company, while aware of the need to respond (see section 5B above), has not formally responded.
There is no evidence before the Panel to this effect, it is pure conjecture, but it could be that the Respondent is a web developer who registered the Domain Name for the company using the Domain Name to connect to the website. It could be that that company is a legitimate business with a legitimate reason for having adopted a “Rittal” name. It may also be that that company had never heard of the Complainant at the date of registration of the Domain Name and, operating exclusively in and around the Sudan, had no reason to know of the Complainant. With cogent evidence along those lines, it is quite possible that the Panel would have found that the Respondent had rights or legitimate interests in respect of the Domain Name and that the Complaint should fail.
The Complainant’s representatives wrote to the Respondent on September 21, 2011, but the Respondent failed to reply. On receipt of the Complaint the Respondent was informed that the time for filing a Response expired on April 5, 2012, but no formal Response has been received in time or at all. That the Respondent is aware of the need for a Response is clear from the Respondent’s email to the Center on April 8, 2012, which is quoted in full at section 5B above. Despite the content of that email, promising “a full and th[o]rough response”, nothing further has been received from the Respondent.
There being nothing before the Panel to suggest that the Respondent has any rights or legitimate interests in respect of the Domain Name, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
The Panel has visited the site to which the Domain Name is attached. It currently resolves to an Arabic language site. Much of it is unintelligible to the Panel, a non-Arabic speaking person. It may be a genuine site; on the other hand it may be a fake site devised to defeat a complaint under the Policy. The Panel notes in this regard that the evidence submitted by the Complainant appears to demonstrate that the use of the website has recently changed.
As the Complainant asserts in the Complaint, if the Respondent had a genuine reason for having adopted the Domain Name, the Complainant’s representatives’ letter of September 21, 2011, gave the Respondent a fair opportunity to come forward with an explanation. Sometimes it may be that communications with a respondent go astray and never reach the intended recipient, but in this case we know that that did not happen, at any rate with the Complaint (see section 5B above). In passing, the Panel adds that if a full and thorough Response had come in as promised, combined with a good reason for the delay, the Panel might well have accepted it out of time.
Faced on the one hand with the substantial evidence filed by the Complainant as to the international fame of its RITTAL brand and on the other hand with the failure of the Respondent to challenge any of that evidence, combined with the absence of any explanation as to why the Respondent selected “rittal” as part of the Domain Name, the Panel has little alternative but to decide that the Respondent selected the Domain Name with the Complainant in mind and with a view to riding on the back of the goodwill associated with the Complainant’s brand or, if the website connected to the Domain Name is not a genuine active business website, in the hope and expectation of receiving an offer to purchase the Domain Name.
In the result the Panel decides that the Respondent registered the Domain Name in bad faith and is using it 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, , be transferred to the Complainant.
Tony Willoughby
Sole Panelist
Dated: April 29, 2012
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