The Complainant is PKC Group Oyj of Helsinki, Finland, represented internally.
The Respondent is Vladimir Anufriev of Kursk, Russian Federation / Domain Admin, PrivacyP of Nobby Beach, Queensland, Australia. 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 August 21, 2014. On August 21, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 22, 2014, the Registrar transmitted by email 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 August 25, 2014 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 amendment to the Complaint on August 26, 2014.
The Center verified that the Complaint together with the amendment to 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 August 28, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 17, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 18, 2014.
The Center appointed Assen Alexiev as the sole panelist in this matter on September 29, 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
The Complainant is a public company that designs, manufactures and integrates electrical distribution systems, electronics and related architecture components for the commercial vehicle industry and other selected segments globally. It has production facilities in Brazil, China, Estonia, Finland, Germany, Lithuania, Mexico, Poland, Russian Federation, Serbia and the United States of America. The Complainant’s revenue in 2013 was equal to EUR 884 million.
The Complainant is the owner of the following trademark registrations (the “PKC GROUP trademark”):
- The combined trademark PKC GROUP with registration No. 349160, registered in the Russian Federation on May 4, 2008 for goods and services in International Classes 9 and 42; and
- The combined trademark PKC GROUP with registration No. 349159, registered in the Russian Federation on May 4, 2008 for goods and services in International Classes 9 and 42.
The disputed domain name was registered on December 5, 2013. 5. Parties’ Contentions A. Complainant
According to the Complainant, the disputed domain name is identical to the PKC GROUP trademark and to the registered name of the Complainant.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is unknown to the Complainant, and the number of companies operating in the same industries as the Complainant is limited. According to the Complainant, the Respondent is likely trying to cause harm to the Complainant with the registration and use of the disputed domain name.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The disputed domain name is linked to a website that falsely pretends to be an official website of the Complainant, and contains information that has not been authorized by the Complainant and is not factually correct. The disputed domain name confuses the shareholders, customers and partners of the Complainant, which is likely to result in an incorrect image of the Complainant, loss of goodwill and potential loss of business opportunities for the Complainant. The Respondent’s website also discloses personal data of past and existing employees of the Complainant and thus breaches the applicable privacy laws. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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 Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
According to Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In the event of a default, under Rules, paragraph (14)(b): “[…] the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004: “[h]ere, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” Furthermore, as stated by the panel in Vviacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443: “[s]ince the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant […]. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In these administrative proceedings, the Respondent’s default entitles the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take its decision on the basis of the statements and documents submitted by the Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its trademark rights in the PKC GROUP trademark.
It is a common practice under the Policy to disregard, in appropriate circumstances, the generic Top-Level Domain (“gTLD”) such as the “.biz” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name is its “pkcgroup” section. This section is identical to the word element of the Complainant’s PKC GROUP trademark, and makes the disputed domain name likely to be regarded as closely associated with the Complainant and its PKC GROUP trademark.
Taking the above into account, the Panel finds that the disputed domain name is identical to the PKC GROUP trademark in which the Complainant has rights, and the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests
The Policy requires the Complainant is required to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent is unknown in the business in which the Complainant is active, and that the Respondent’s website creates a false impression of being an official website of the Complainant and may thus harm the business reputation of the Complainant and breach the privacy laws by disclosing personal information about the employees of the Complainant. Thus, Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel any arguments in its defense in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reason for the acquisition and use of the disputed domain name, it could have brought it to the attention of the Panel. In particular, Respondent has failed to contend that any of the circumstances described in Policy, paragraph 4(c), is present in its favor.
Apart from the factual contentions of the Complainant, the only other sources of information about Respondent are the WhoIs information, provided by the Registrar, and the content of the website at the disputed domain name. The WhoIs information contains no evidence that the Respondent is commonly known by the disputed domain name. The disputed domain name is identical to the PKC GROUP trademark of the Complainant, and the website linked to it has the appearance of an official website of the Complainant. Given that the Respondent has provided no explanation for the registration of the disputed domain name and for the content of the associated website, and in the lack of any evidence in the case file to the contrary, the Panel is prepared to accept the Complainant’s contentions that the Respondent has registered the disputed domain name without the consent of the Complainant and that the content of the Respondent’s website may negatively affect the reputation of the Complainant and infringe the privacy of the Complainant’s employees.
In the Panel’s view, such actions of the Respondent cannot give rise to rights or legitimate interests in the disputed domain name. Therefore, the Panel accepts that the Complainant’s prima facie case has not been rebutted, and finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have 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 your documented out of pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The provisions of paragraph 4(b) of the Policy are without limitation, and bad faith registration and use may be found on grounds otherwise satisfactory to the Panel.
The content of the website at the disputed domain name makes it clear that the Respondent was positively aware of the Complainant and its business at the time of the registration of the disputed domain name, which is identical to the PKC GROUP trademark. The Respondent has not shown any rights or legitimate interests in the disputed domain name. As contended by the Complainant and not denied by the Respondent, the disputed domain name resolves to a website that falsely appears to be an official website of the Complainant and purports to offer information about the Complainant and the activities of its plant in the Russian Federation and discloses personal information about the Complainant’s employees. This website and its content have not been approved by the Complainant.
Taken together, and in the lack of any evidence to the contrary, these circumstances satisfy the Panel that the registration of the disputed domain name and its use by the Respondent have been carried out with the Complainant and its reputation in mind and in an attempt to confuse Internet users and in particular the customers and partners of the Complainant, and that such confusion may cause harm to the reputation of the Complainant and loss of business opportunities for it. As further contended by the Complainant, the content of the Respondent’s website may also infringe the privacy of the Complainant’s employees. In the lack of any allegation or evidence to the contrary, the Panel is prepared to accept that this conduct of the Respondent amount to registration and use of the disputed domain name in bad faith. 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.
Assen Alexiev
Sole Panelist
Date: October 13, 2014
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