The Complainant is OLX, Inc., OLX S.A., of New York, United States of America, represented by Allende & Brea Law Firm, Argentina.
The Respondent is Kumbha Ram Godara, N/A of Churu, Rajasthan, India. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Cloud Group Limited (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on October 17, 2012. On October 18, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 18, 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 October 25, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 14, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2012.
The Center appointed Jacques de Werra as the sole panelist in this matter on November 20, 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, OLX Inc and OLX S.A. (hereinafter “OLX”), is a company incorporated under the laws of Delaware, United States. The OLX website hosts free user-generated classified advertisements for urban communities around the world and provides discussion forums sorted by various topics. The name OLX was coined by Mr. Alejandro Oxenford and Fabrice Grinda, founders of OLX to identify an Online eXChange market. The idea of OLX is similar to the one designed by Craigslist, i.e. to provide free online classifieds.
The OLX trademarks are registered in several countries including Argentina, United States and the European Union.
The Complainant holds, among others, the following OLX trademarks (hereinafter together “the Trademark”):
(i) European Union Reg. No. 004883741 OLX trademark registered on March 5, 2007 Classes 35 and 38.
(ii) European Union Reg. No. 007225717 OLX trademark registered on August 7, 2009 Classes 35
(iii) US Reg. No. 3295467 OLX trademark registered on September 18, 2007 Class 35.
The Complainant registered more than one hundred domain names containing and or corresponding to the OLX trademarks, including the following ones: (February 8, 1999), (March 2, 2006), (March 1, 2006) and (July 30, 2008).
The Trademark and these domain names were all registered a few years before the Disputed Domain Name was registered i.e. on May 11, 2012.
The Complainant registered more than 60 domain names in the ccTLD bearing the Trademark and uses them for its online classifieds services.
The Disputed Domain Name is used to offer free classified services. 5. Parties’ Contentions A. Complainant
The Complainant claims that the Disputed Domain Name is confusingly similar to the Trademark because it incorporates it and differs from it only by the addition of the term “quickr”. This is not sufficient to distinguish them given that the term “quickr” is also associated with a domain name () operating by an Indian company which also offers free classifieds. This creates the erroneous impression that the Disputed Domain Name would be operated by the Indian branch of the Complainant or that there is a connection between the Complainant and the company running the “quickr” platform.
The Complainant claims that it is the owner of the Trademark and that it has not authorized, licensed, permitted or otherwise consented to the Respondent’s use of the Trademark in the Disputed Domain Name. The Complainant considers that there is no evidence showing that the Respondent has any rights in any trademarks or service marks which are identical, similar or related to the Disputed Domain Name. The Respondent has furthermore not acquired any trademark rights corresponding to the Disputed Domain Name and is not commonly known by the Disputed Domain Name and is not using it in connection with a bona fide offering of goods or services.
The Complainant claims that the Disputed Domain Name was registered and has been used in bad faith by the Respondent. The Respondent registered the Disputed Domain Name several years after the Trademark was registered. It cannot be conceived that the Respondent ignored the Complainant and the Trademark given that it registered the Disputed Domain Name which contains the Trademark to which the term “quickr” is added and uses it in connection with online classified services knowing that this is exactly the same activity as the Complainant. It is consequently clear that the Respondent is targeting advertisement websites when it registered the Disputed Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has established that it has rights in the Trademark and has stated that the Disputed Domain Name is confusingly similar to it.
The Panel considers in this respect that the “olx” element contained at the beginning of the Disputed Domain Name is distinctive so that the addition of the term “quickr” does not avoid the confusing similarity between the Disputed Domain Name and the Complainant’s Trademark.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. A respondent in a UDRP proceeding does not assume the burden of proof, but may establish rights or legitimate interests in a domain name by demonstrating in accordance with paragraph 4(c) of the Policy:
i) that before any notice to the respondent of the dispute, the respondent used or made 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) that the respondent is commonly known by the domain name, even if the respondent has not acquired any trademark rights; or
iii) that the respondent intends to make a legitimate, noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
Although the Complainant bears the ultimate burden of providing all three elements of paragraph 4(a) of the Policy, previous panels have consistently ruled that paragraph 4(c) of the Policy shifts the burden to the Respondent to come forward with evidence of its rights or legitimate interests in the Disputed Domain Name, once the Complainant has made a prima facie showing. See Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
This Panel finds in this case that the Complainant has established that the Respondent has no connection or affiliation with the Complainant, which has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant’s Trademark. The Respondent does not appear to be commonly known by the name “OLX” or by a similar name, and has not alleged any facts to justify any rights or legitimate interests in the Disputed Domain Name. The Respondent does not make any legitimate use of the Disputed Domain Name for non commercial activities given that the Disputed Domain Name is used in connection with online classified services, thereby competing directly with the activities of the Complainant.
The Panel thus accepts the Complainant’s prima facie showing and finds that it was consequently up to the Respondent to come forward with evidence of its rights or legitimate interests in the Disputed Domain Name which has not been accomplished by the Respondent.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
Accordingly, for a complainant to succeed, the panel must be satisfied that the relevant domain name has been registered and is being used in bad faith.
In this case, in view of the fact that the Disputed Domain Name has been used to offer free online classifieds which is exactly the same business activity of the Complainant, the Panel considers that it cannot be a coincidence that the Trademark was integrated as the first and distinctive element of the Disputed Domain Name by the Respondent. The Panel thus holds that the Respondent knew of the Complainant’s Trademark, products and services at the time of the registration of the Disputed Domain Name and that it intentionally intended to create an association with the Complainant and its business when it registered the Disputed Domain Name. Consequently, the Panel holds that the Disputed Domain Name was registered in bad faith.
Givent that the Respondent is using the Disputed Domain Name in order to offer the same services as the ones offered by the Complainant on its numerous websites, the Panel considers that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the its, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the respondent’s website or location.
Accordingly, the Panel finds on the basis of the evidence presented that the Respondent has registered and is using the Disputed Domain Name in bad faith. Therefore, the Complainant has satisfied paragraph 4(a)(iv) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be cancelled, as requested by the Complainant.
Jacques de Werra
Sole Panelist
Date: December 6, 2012
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