The Complainant is Crytek GmbH of Frankfurt, Germany, represented by Lausen Rechtsanwälte, Germany.
The Respondent is P of Nobby Beach, Queensland, Australia/ Private Registrations Aktien Gesellschaft, Domain Admin of Kingstown, Saint Vincent and the Grenadines. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 23, 2013. On May 23, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 24, 2013, the Registrar transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 24, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 28, 2013.
The Center verified that the Complaint together with the amended 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 May 31, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 21, 2013.
The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on June 27, 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’s trademark CRYENGINE has been registered with the German Patent and Trademark Office since April 9, 2002 for certain goods and services including software, computer and games software, electronic and data carriers, computers, game and video consoles, and hardware components, hard and software development, as more specified in the copy of the relevant Certificate of Registration added to the Complaint as Annex 4.
Also, the Complainant holds a registration No. 2.870.428 for the trademark CRYENGINE on the Principal Register of the United States Patent and Trademark Office (USPTO) dated August 3,2004for computer software development tools, computer and games software, electronic data carriers, computers, game or video consoles and hardware components, as more specified in the copy of the relevant Certificate of Registration added to the Complaint as Annex 5.
The disputed domain name was registered on January 22, 2007 and expires on January 22, 2014. 5. Parties’ Contentions A. Complainant
The Complainant claims the following:
that the trademark CRYENGINE is used for a highly advanced development solution for the creation of games, movies, high-quality simulations and interactive applications, at the moment in three generations;
- that CRYENGINE is very famous in the world and the world wide web;
- that a Google search for the word “Cryengine” lists more than 5.500.000 results corresponding to the Complainant’s development solution and that many third party websites report on the Complainant’s “Cryengine” solution, as shown in three examples provided in the Complaint;
- that the only purpose the Registrant/ might have had registering the disputed domain name is selling it to the Complainant as the owner of the corresponding trademark;
- that the Registrant uses the privacy protect service “p” which makes it impossible to directly contact the Registrant or to file a lawsuit against him;
- that the Complainant tried to contact “p” and find out the Registrant´s owner´s details, but only received the answer that regarding Trademark infringement a UDRPcase should be exercised;
- that the WIPO database shows 368 decided cases with “p” as the Respondent;
- that it is obvious that domain name grabbers use the Respondent´s privacy service as a preferred instrument to hide their identities;
- that the use of a privacy shield supports the finding of bad faith registration;
- that the disputed domain name is identical to a trademark in which the Complainant has rights;
- that the Respondent has no rights or legitimate interests in respect of the disputed domain name and
- that the disputed domain name was registered and is being used in bad faith.
In view of the foregoing, based on its above-mentioned trademark rights, the Complainant requests the Panel to order the transfer of the disputed domain name to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
For the Complainant to succeed in this proceeding, under paragraph 4(a) of the Policy, it must prove that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
In accordance with paragraph 15 (a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, Rules, Supplemental Rules and any principles of law that it deems applicable. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is almost identical and confusingly similar to the trademark CRYENGINE in which the Complainant has rights. Hence, the Panel finds that the Complainant has succeeded on this first element of the Policy. B. Rights or Legitimate Interests
According to paragraph 4(a)(ii) of the Policy, the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy in paragraph 4(c) sets out various ways in which the respondent may demonstrate rights or legitimate interests in a domain name.
Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interest in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a prima facie showing of a respondent’s lack of rights or legitimate interests in a domain name, the burden of submitting production shifts to the respondent. The respondent must then by concrete evidence demonstrate its rights or legitimate interests in the disputed domain name in order to refute the prima facie case.
The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and so the burden of production has effectively shifted to the Respondent, who did not reply to the Complainant’s contentions and, therefore, has not made such showing.
For these reasons, and in absence of a plausible explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Almost five years after the trademark CRYENGINE was registered, the Respondent registered the disputed domain name and the Complainant has produced evidence to the Panel’s satisfaction to show that the Complainant’s CRYENGINE trademark is well-known around the world and in the Internet. Thus, the Panel deems that the disputed domain name was registered in bad faith for the purpose of either selling it to the rightful trademark owner for a profit, as alleged by the Complainant, or to otherwise use it to attract for commercial gain, Internet users to the Respondent´s website by creating a likelihood of confusion with the Complainant´s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website.
As mentioned in the Complaint, the Respondent does not seem to be using the disputed domain name since the day of its registration.
However, as stated in 3.2 of WIPO Overview 2.0, “the apparent lack of so-called active use (e.g, to resolve to a website) of the disputed domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith.” And further indicates that “examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity.
Since the three circumstances mentioned in the above paragraph are present in this case, and particularly in view of the Respondent not having answered the Complainant’s contentions, the Panel finds that the Respondent both registered and is using the disputed domain name in bad faith and that the Complainant has therefore succeeded in making out the third element of the case. 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 transferred to the Complainant.
Miguel B. O'Farrell
Sole Panelist
Date: July 8, 2013
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