The Complainant is OMD USA LLC of New York, New York, United States of America, represented by Kenyon & Kenyon, United States of America (“United States”).
The Respondent is Melanie Schulz of Bonn, Germany. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on March 6, 2013. On March 6, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 7, 2013, 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 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 2, 2013.
The Center appointed Ian Lowe as the sole panelist in this matter on April 10, 2013. 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 the United States affiliate of Optimum Media Direction, part of the Omnicom Group. The Omnicom Group is a United States based global advertising, marketing and corporate communications holding company. The group comprises more than 1,500 agencies and provides services for over 5,000 clients in more than 100 countries worldwide.
The Complainant and its affiliates have used the trademark OMD and other marks comprising “OMD” (the “OMD Mark”) since 1996. As a result of the long term success of the Complainant and its large client portfolio, the Complainant has become well known in the media, marketing and advertising industry. The group owns numerous trademark registrations around the world for the OMD Mark. In particular, the Complainant is the owner of United States trademark number 2,431,908 OMD in respect of “advertising agency services; buying advertising time and space, and planning, placing and managing advertising for others in broadcast, on-line and publication media”.
The Domain Name was registered on January 7, 2013. At the time of preparation of the Complaint, the Domain Name resolved to a web page (the “Website”) claiming to be OMD Bulgaria – Onair Media Group – stating that “OMD is an integrated communications agency and stands for best strategic competency in all media and communications relevant disciplines…”. The top of the web page featured a device comprising the three letters OMD. At the time of notification of the Complaint, the Domain Name did not resolve to any web page. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its OMD trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trademark 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. A. Identical or Confusingly Similar
Leaving aside the “.com” suffix, that may be ignored when assessing identity and confusing similarity for the purposes of paragraph 4(a)(i) of the Policy, the Domain Name comprises the entirety of the Complainant’s OMD trademark together with the non-distinctive geographic term “Bulgaria”.
Accordingly, the Panel finds that the Domain Name is confusingly similar to the trademark OMD in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint. The Domain Name previously resolved to a web page that purported to promote the services of OMD Bulgaria Onair Media Group. OMD Bulgaria is said to be “an integrated communications agency and stands for best strategic competency in all media and communications relevant disciplines: analysis, target group comprehension, communications strategy, concept development, planning, negotiation as well as purchasing, processing, optimization, evaluation, research and content, future, direct marketing; and, of course, performance.”
The Website was similar in look and feel to the home page of the Complainant’s web site. According to the Complainant, the Website listed some actual employees of the Complainant among its contacts. No explanation has been given for this and the Complainant has not given any authority for these names to be listed. In addition, the Website uses a similar logo to that of the Complainant. The Complainant’s logo is on the left below and the Respondent’s on the right.
In the Panel’s view, the use of such a similar logo, comprising the identical three letters, is both intended to and is likely to confuse Internet users. In the absence of any response by the Respondent, there is no explanation as to why the Respondent uses the letters OMD when the name of the organisation featured on the Website is Onair Media Group.
Given the nature of the Website and the Domain Name, the Panel finds that the Complainant has made out a strong prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. In the absence of a Response, there is no rebuttal of this strong prima facie case. The Panel cannot conceive of any such rights or legitimate interests.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
By the same reasoning and in the absence of any explanation from the Respondent, the Panel finds that the Respondent selected the Domain Name with a view to drawing visitors to the Website, those visitors having been attracted to the Website by the potential for deception inherent in the Domain Name, namely its confusing similarity with the Complainant’s trademark. Although the Respondent’s motives are not entirely clear, this was presumably with a view to inducing Internet users into dealings with the Respondent in the mistaken belief that they were dealing with the Complainant, particularly since the Website purported to offer services similar to those offered by the Complainant.
In the circumstances the Panel finds that the Respondent is very likely to have had the Complainant in mind when registering the Domain Name. On the evidence before it, none of which has been challenged by the Respondent, the Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(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 Domain Name be transferred to the Complainant.
Ian Lowe
Sole Panelist
Date: April 24, 2013
Full & Egal Universal Law Academy