Complainant is SAP AG of Walldorf, Germany, represented by Panitch Schwarze Belisario & Nadel, LLP, United States of America.
Respondent is wwww wwww of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 3, 2014. On June 4, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 4, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on June 11, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 1, 2014. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 2, 2014.
The Center appointed Francine Tan as the sole panelist in this matter on July 24, 2014. 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
Complainant is a world leader in enterprise software applications and related services. It began operations in 1972 and is headquartered in Germany. Complainant employs over 55,000 people in 130 countries and has a customer base of more than 197,000 spanning nearly 130 countries. Complainant is listed on the Frankfurt and New York Stock Exchanges, amongst others.
Complainant has trademark registrations for SAP in major markets around the world including in China where Respondent is based. Complainant gave evidence of its U.S. trademark registrations for SAP and SAP (design) mark. Complainant’s SAP brand was ranked 25th of the world’s top brands by Interbrand in 2012 and 2013.
The disputed domain name was registered on September 24, 2013. The disputed domain name resolves to a website where various gaming products are offered. 5. Parties’ Contentions A. Complainant
Complainant asserts, firstly, that the disputed domain name is identical or confusingly similar to the SAP trade mark in which Complainant has rights. The disputed domain name fully incorporates Complainant’s well-known and registered mark, SAP. The addition of the letters “sf” does not provide sufficient differentiation from the SAP mark. Reference was made to the cases Intel Corporation v. The Pentium Group,WIPO Case No. D2009-0273; Deutsche Lufthansa AG v. George Aby, WIPO Case No. D2009-0071. In fact, the addition of the letters “sf” may be construed as suggesting Complainant’s other registered trade mark, SUCCESSFACTORS, and its products and services.
Secondly, Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name: (i) Respondent does not have trademark rights in SAP; and (ii) Respondent has not been authorized or licensed by Complainant to use the SAP trade mark. Given the reputation of Complainant’s SAP mark, it is reasonable to conclude that Respondent is seeking by use of the disputed domain name to capitalize on Complainant’s brand and attracting Internet traffic to its website. This does not constitute legitimate use.
Thirdly, Complainant contends that the disputed domain name was registered and is being used in bad faith. The registration of a domain name incorporating a famous trademark is sufficient evidence of bad faith registration and use. Reference was made to the cases AT&T Corp. v. John Zuccarini,WIPO Case No. D2002-0440; Intel. Corporation v. The Pentium Group,WIPO Case No. D2009-0273. The disputed domain name was registered long after Complainant’s first use of SAP. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has established it has rights in the SAP trade mark. As to the incorporation of the additional letters “sf” in the disputed domain name, the Panel agrees that it fails to distinguish the disputed domain name from Complainant’s mark. The SAP mark is clearly identifiable within the disputed domain name and the Panel considers that the addition of the common letters “sf” at the end of “sap” in the disputed domain name to be “insufficient to prevent threshold Internet user confusion” (see paragraph 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition) (“the WIPO Overview 2.0”). The Panel is unable, with what has been presented by Complainant, to make a finding that Respondent’s intention of including the letters “sf” must have been to cause confusion with reference to Complainant’s other registered trade mark, SUCCESSFACTORS.
The Panel finds the first element of paragraph 4(a) of the Policy to have been satisfied. B. Rights or Legitimate Interests
Paragraph 15 of the Rules prescribes that “a Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Although, Respondent did not file a response in this case, Complainant is obliged to establish its case in compliance with the Policy. At the same time, there has been recognition given by previous UDRP panels that complainants are intrinsically limited in their capacity to prove a respondent has no rights or legitimate interests and therefore complainants are only required to establish at least a prima facie case in this regard. The burden would thereafter shift to the respondent to prove otherwise. (See paragraph 2.1 of the WIPO Overview 2.0.)
The Panel finds that Complainant has succeeded in establishing a prima facie case whereas Respondent has failed to participate in these proceedings and to respond in any manner to the assertions made by Complainant. The Panel is therefore unable to make a finding to the contrary of what Complainant has established.
The second element of paragraph 4(a) of the Policy has therefore been satisfied. C. Registered and Used in Bad Faith
The Panel notes that Respondent provided its name as “wwww wwww” as well as what appears to be an incomplete and/or fictitious address and phone number when registering the disputed domain name. The Panel draws a negative inference from this as it is indicative of bad faith registration by Respondent in hiding behind anonymity and an intention to be uncontactable. The Panel further infers, considering the well-known nature of the SAP mark, the Respondent’s silence in these proceedings, and failure to provide accurate contact details when registering the disputed domain name, that Respondent registered the disputed domain name with the intention to trade on the goodwill and reputation of Complainant and of its trade marks for financial gain. The use to which the disputed domain name has been put falls squarely within the example of bad faith under paragraph 4(b)(iv) of the Policy. The Panel agrees that the registration of a domain name that incorporates in its entirety a well-known trade mark may constitute bad faith registration and use.
Accordingly, it is the Panel’s finding that Complainant has satisfied the third requirement under paragraph 4(a) 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 transferred to the Complainant.
Francine Tan
Sole Panelist
Date: August 7, 2014
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