Complainant is DPD Dynamic Parcel Distribution GmbH & Co.KG. of Aschaffenburg, Germany, represented by Inlex IP Expertise, France.
Respondent is Vinod Vinod of Bangalore, Karnataka, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2014. On October 16, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 17, 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 October 20, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 9, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 10, 2014.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on November 14, 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 owns many trademark registrations worldwide for its DPD family of marks, in relation to its parcel delivery services, including for example for the DPD logo, Community trademark registration number 002238178 (July 2, 2002, figurative) in classes 36 and 39; and International Trademark registration number 761146 (May 26, 2001, figurative) in classes 36 and 39. In addition Complainant is owner of Community trademark registration number 00615987 (August 19, 2009) for the word mark “DPD Dynamic Parcel Distribution” in classes 35 and 39.
The disputed domain name was registered April 30, 2014. It routes to a website displaying Complainant’s trademarked logo and substantially mimicking the appearance and visual elements displayed by Complainant on many of its own websites. The website to which the disputed domain name routes also contains a field for individuals to enter details presumably for parcel delivery tracking purposes. 5. Parties’ Contentions A. Complainant
Complaint alleges that Complainant has no relationship whatsoever with Respondent or the website at the disputed domain name. Complainant contends that Respondent uses the disputed domain name for phishing operations and identity theft.
Complainant avers that it received inquiries from a third party, confused about the disputed domain name. The third party allegedly received emails from an address using the disputed domain name, relating to parcel tracking.1 The emails apparently contained links to the disputed domain name and directed customers to go to the website to enter details to track their shipments.
Complainant avers that the website to which the disputed domain name routes presents the appearance of Complainant’s legitimate websites, but that clicking on the links produce few results. However, the Complaint avers, by entering information as directed by the email received by the customer, the website returns false tracking information. The Complaint suggests that the website is being used for identity theft or to collect payments from customers.
Summarizing its basic legal contentions, Complainant alleges that (1) the disputed domain name is confusingly similar to Complainant’s trademark, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy.
Complainant also notes that on September 17, 2014, its attorneys sent Respondent a cease and desist letter, without response.
On this basis, Complainant seeks transfer. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Notification of Proceedings
The Policy and the Rules establish procedures to give respondents notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules).
The Center sent to Respondent by courier notification of these proceedings. The Center used the address from the Registrar’s verification, but the recipient at the listed address rejected delivery of the notification.
The Center also sent email notifications to contacts provided by the Registrar.
The Panel is satisfied that by sending communications to the contacts verified by the Registrar, based on those provided by Respondent and listed in the WhoIs records, the Center has exercised care and has fulfilled its responsibility under paragraph 2(a) of the Rules to employ all reasonably available means to serve actual notice of the Complaint upon Respondent. B. Substantive Rules of Decision
The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish that (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) 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. Policy paragraph 4(a).
Complainant must establish these elements even if Respondent submits no Response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. See, e.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425. C. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to a trademark in which Complainant has rights.
UDRP decisions commonly disregard domain name suffixes in determining whether a disputed domain name is identical or similar to a complainant’s marks. The Panel notes that the predominant, distinctive feature of Complainant’s family of marks is the abbreviation “DPD.”
Removing the “.com” suffix from the disputed domain name leaves only the phrase “dpdservicesinc.” Respondent has fully included the DPD abbreviation in the disputed domain name. The Panel agrees with Complainant that the addition of the generic terms “services” and “inc” do not alleviate the confusion that users would experience. The occurrence of a third party having contacted Complainant to clarify the source of the website to which the disputed domain name routes, the Panel finds, supports the conclusion of confusing similarity.
The requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. D. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i) – (iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of production shifts to the respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
The Panel accepts Complainant’s undisputed allegations that Respondent has no authorization or license to use its trademarks in the disputed domain name and that Respondent is not commonly known by the disputed domain name.
The website to which the disputed domain name routes imitates displays from Complainant’s sites and purports to offer a commercial parcel delivery service. It appears doubtful, though, that there is any real business conducted via the website, but neither does it appear to be used for commentary or other fair use. Although the record does not enable the Panel to fully map Respondent’s deceptive scheme, the Panel believes that it is reasonable to infer that Respondent is seeking to attract Internet users through Complainant’s marks for Respondent’s own commercial purposes. The Panel so finds.
The Panel therefore concludes that Respondent is not “making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.” The Panel also accepts Complainant’s assertion that there is no bona fide offering.
The Complaint makes out a prima facie case. Filing no response, Respondent has not rebutted Complainant’s prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of “rights or legitimate interests” in use of the disputed domain name.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied. E. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established, as elaborated below.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and bad faith use. Policy, paragraph 4(b)(iv).
The Panel finds that, having copied Complainant’s figurative marks and other visual aspects of Complainant’s websites, Respondent was undoubtedly aware of Complainant’s DPD family of marks. Respondent deliberately used the term “DPD” in registering the disputed domain name to create confusion and attract Internet users. The Panel has already concluded above that, whatever the full details of the deceptive scheme, Respondent sought to register and use its website for commercial gain. Therefore, the Panel concludes that Respondent registered the disputed domain name in bad faith.
The copying of intellectual property from Complainant’s websites without authorization also shows use of the disputed domain name in bad faith. Again, Respondent appears to be using the disputed domain name for deception. The Panel finds as well that Respondent’s failure to reply both to Complainant’s cease and desist letter and to the Complaint in this proceeding is cumulative evidence of use in bad faith.
Consequently, the Panel concludes that the requirements of the third element of Policy paragraph 4(a) are fulfilled. 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 Complainant.
Jeffrey D. Steinhardt
Sole Panelist
Date: November 20, 2014
1 Copies of the correspondence are annexed to the Complaint. The Panel finds that the correspondence credibly evidences the third party’s communication with Complainant, the fact that the party received the annexed messages from an email address employing the disputed domain name, and the actual confusion over the use of the disputed domain name.
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