The Complainant is Audi AG of Ingolstadt, Germany, represented by HK2 Rechtsanwälte, Germany.
The Respondent is Robabe Marashi, Plan B Media, Inc. of Carlsbad, California, United States of America (“USA”), self-represented. 2. The Domain Name and Registrar
The disputed domain name (the “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 December 18, 2014. The Center transmitted its request for registrar verification to the Registrar on December 19, 2014. The Registrar replied on December 22, 2014, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Respondent was the registrant, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies, that the Domain Name expires on July 17, 2015 and would remain locked during this proceeding, that the registration agreement is in English, and that the Domain Name was registered to this registrant on July 17, 2014. The Registrar also provided the full contact details held in respect of the Domain Name on its WhoIs database.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 24, 2014. In accordance with paragraph 5(a) of the Rules, the due date for Response was January 13, 2015. The Respondent requested an extension on January 10, 2015; no grounds were given. The Center refused the request on January 12, 2015, taking into account that the request was received close to the due date and that there did not appear to be exceptional circumstances as required by paragraph 5(d) of the Rules. The Response was filed with the Center on January 14, 2015 (Geneva time), although it appears to have been sent late on January 13, 2015, from California.
The Center appointed Jonathan Turner as the sole panelist in this matter on January 28, 2015. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant is a major manufacturer of motor vehicles sold under its trademark AUDI which has been registered in numerous countries.
The Domain Name was registered by the Respondent on July 17, 2014, and directed to a standard parking page provided by the Registrar with links to car-related websites.
The Complainant contacted the Respondent by telephone and offered to pay the Respondent’s out of pocket expenses of registration in return for transfer of the Domain Name; the Respondent replied on November 10, 2014, stating:
“I had a chance to discuss your offer with everyone in my group. Unfortunately, I would have to respectfully reject your offer. At this time, I would like to continue with my original plan to start a blog and write reviews; however, I am still open to entertaining offers at the right price.
“I appreciate your offer to cover my expenses for owning the domain thus far, but I believe there is more value to this domain name than your offer. If you are still interested, please submit a more practical offer.” 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is effectively identical to its well-known and registered trademark AUDI.
The Complainant submits that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. According to the Complainant, there is no indication that the Respondent has used or made demonstrable preparations to use the Domain Name for a bona fide offering of goods or services, since the parking page does not qualify as such an offering.
The Complainant further contends that the Respondent is not commonly known by the Domain Name and is not making legitimate noncommercial or fair use of it. The Complainant submits that the Respondent’s claimed intention to use the Domain Name to post a blog and reviews is belied by the fact that it is still directed to a parking page and by the Respondent’s offer to sell it “at the right price”.
The Complainant alleges that the Respondent registered and is using the Domain Name in bad faith. The Complainant maintains that the circumstances indicate that the Respondent registered the Domain Name primarily for the purpose of sale for payment exceeding its out-of-pocket costs. The Complainant further contends that the Respondent has, by using the Domain Name, intentionally attempted to attract Internet users to his web page by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of that web page, for commercial gain in the form of click-through commissions on sponsored links. The Complainant adds that the Respondent must have known of the Complainant’s mark. B. Respondent
The Respondent contends that the generic Top-Level Domain (“gTLD”) suffix “.reviews” indicates that the Domain Name is for reviews and that use for this purpose is fair use permitted under trademark law. The Respondent states that he purchased one of the Complainant’s cars in April 2014 and decided to write a blog about his experience and to provide a forum for other owners of AUDI cars to share their experiences. However, he continues, prior to uploading his blog site, the Domain Name was suspended by the hosting company due to this dispute. He adds that he has now posted a blog at a different address.
The Respondent disputes the allegation of bad faith. He states that the parking pages were posted by the hosting company automatically, that he has not received any payment in respect of the sponsored links, and that the “cashparking” option was disabled. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn. A. Identical or Confusingly Similar
It is not disputed that the Complainant has rights in the mark AUDI.
As the Respondent points out, fair and honest use of a mark for the purpose of reviewing products placed on the market under the mark by its proprietor is in principle permitted under trademark laws. However, it is well-established that the purpose of the first requirement of the UDRP is not to determine whether the Respondent’s use of the Domain Name is impermissible; this is assessed in accordance with the second and third criteria. By contrast, the purpose of the first requirement is to determine whether the Complainant has a sufficient interest in respect of the Domain Name.
On this basis, the Panel considers that the Domain Name is identical or confusingly similar to the Complainant’s AUDI mark. There can be no doubt that many Internet users would assume that the Domain Name refers to the Complainant, so that the Complainant has a sufficient interest in it.
The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
It is clear from both parties’ statements that the Respondent has not used the Domain Name for any bona fide offering of goods or services. Nor has he made any demonstrable preparations to do so. It is also evident that the Respondent is not commonly known by the Domain Name.
The Respondent is not currently making any legitimate noncommercial or fair use of the Domain Name. Even if demonstrable preparations to make a legitimate noncommercial or fair use of a domain name could suffice to create a legitimate interest in it, by analogy with paragraph 4(c)(i) of the UDRP, the Panel finds that the Respondent has not in fact made such preparations. The material annexed to the Response and posted on the Internet is unconvincing. Having regard also to the Respondent’s offer to sell the Domain Name, the Panel concludes that these are not genuine preparations for legitimate noncommercial or fair use.
There does not appear to be any other basis on which the Respondent could claim a right or legitimate interest in respect of the Domain Name. In all the circumstances, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
The Panel notes the Respondent’s offer to sell the Domain Name to the Complainant and his lack of any real preparation for its legitimate use. In the circumstances, the Panel finds that the Domain Name was registered primarily for the purpose of selling it to the Complainant for payment in excess of his out-of-pocket costs.
This constitutes evidence of registration and use of the Domain Name in bad faith in accordance with paragraph 4(b)(i) of the UDRP. This presumption is not displaced by other material in the file. In all the circumstances, the Panel concludes that the Domain Name was registered and is being used in bad faith.
All three requirements of the UDRP are satisfied and it is therefore appropriate to transfer the Domain Name to the Complainant as requested in the Complaint. 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.
Jonathan Turner
Sole Panelist
Date: February 1, 2015
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