The Complainant is Simyo GmbH of Düsseldorf, Germany, represented by Siebeke Lange Wilbert, Germany.
The Respondent is Domain Privacy Service FBO Registrant of Provo, United States of America / Ramazan Kayan of 's-Gravenhage, the Netherlands. 2. The Domain Name And Registrar
The disputed domain name is registered with FastDomain, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2014. On December 22, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 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 January 5, 2015 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 January 8, 2015.
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 January 9, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was January 29, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 30, 2015.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on February 13, 2015. 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 mobile communications provider, operating by itself or through its licensees in Germany, France, Spain and the Benelux and in partnership with roaming networks worldwide. The Complainant also sells mobiles, as well as tablets and dongles, routers, memory cards, cables and adapters.
The Complainant is the holder of, inter alia, the following registered trademarks, which it uses in connection with its activities:
- SIMYO, registered on September 22, 2006 as a Community trademark with registration number 004319307 in classes 9, 35, 37, 38, 39, 42 and 43;
, registered on April 17, 2008 as a Community trademark with registration number 004384855 in classes 9, 35, 37, 38, 39, 42 and 43.
The disputed domain name was created on December 9, 2014 and is registered by the Respondent. The disputed domain name is linked to a website on which mobile phones, tablets and videogame consoles are offered for sale. 5. Parties’ Contentions A. The Complainant
The Complainant considers the disputed domain name to be confusingly similar to trademarks and service marks in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the disputed domain name. According to the Complainant, the Respondent has not used the disputed domain name in connection with a legitimate use. Also, according to the Complainant, the Respondent has not been commonly known by the disputed domain name.
Finally, the Complainant considers that the disputed domain name was registered and being used in bad faith. B. The Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer a domain name. As the proceedings are administrative, the standard of proof is the balance of probabilities.
Thus for the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
1. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
2. the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
3. the disputed domain name has been registered and is being used in bad faith.
The Panel will deal with each of these requirements in turn. A. Identical or Confusingly Similar
To prove this element the Complainant must first establish that there is a trademark or service mark in which it has rights. The Complainant has clearly established that there is a trademark in which the Complainant has rights. The mark has been registered and used, including in the Benelux, where the Respondent is located.
The Panel considers the disputed domain name to be composed of a name identical to the Complainant’s SIMYO trademark and the non-distinctive generic terms “web” and “shop”, which clearly refer to an online store. The Panel is of the opinion that the mere addition of non-distinctive text to a complainant’s trademark constitutes confusing similarity, as set out in paragraph 4(a)(i) of the Policy (see Belstaff S.R.L. v. Jason Lau, Sharing,WIPO Case No. D2012-0783, where the domain name was held to be confusingly similar to the BELSTAFF trademark; Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209, where the domain names , , and were considered confusingly similar to the RED BULL trademark; L'Oréal and Lancôme Parfums et Beauté et Compagnie v. Deco Trends & Art, K. Plooyer,WIPO Case No. D2011-0524, where the addition of the non-distinctive generic terms “online”, “shop” and/or “gifts” and the addition of the geographical term “paris” to a name that is confusingly similar to the complainant’s trademark, were considered insufficient to reduce the identity or confusing similarity, as set out in paragraph 4(a)(i) of the Policy.
Accordingly, the Complainant has made out the first of the three elements that it must establish. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name.
It is sufficient for the Complainant to make a prima facie showing that the Respondent has no right or legitimate interest in the domain name in order to place the burden of rebuttal on the Respondent. (See: Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
The Panel notes that the Respondent has not been commonly known by the disputed domain name and that the Respondent has not acquired trademark or service mark rights. The Respondent’s use and registration of the disputed domain name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent existed.
Moreover, the Panel is of the opinion that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. In fact, the Respondent is using the disputed domain name to advertise and sell products which are similar to the products sold on the Complainant’s website. Furthermore, the Respondent creates an impression that the website is an official website of the Complainant or is authorized or licensed by it, by replicating the essential characteristics of the Complainant’s website including the Complainant’s trademarks. According to the Panel, such use of the disputed domain name is detrimental to the Complainant and cannot be considered to constitute a bona fide commercial or fair use (see Belstaff S.R.L. v. Jason Lau, Sharing,WIPO Case No. D2012-0783).
Finally, the Respondent did not reply to the Complainant’s arguments and decided not to take part in the administrative proceedings. This is a further indication of the absence of rights or legitimate interests in the disputed domain name (INTS IT IS NOT THE SAME, GmbH (dba DESIGUAL) v. Two B Seller, Estelle Belouzard,WIPO Case No. D2011-1978).
Accordingly, the Complainant has made out the second of the three elements that it must establish. C. Registered and Used in Bad Faith
The Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith (See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052).
Paragraph 4(b) of the Policy provides a nonexclusive list of factors, any one of which may demonstrate bad faith. Among these factors demonstrating bad faith registration and use is the use of a domain name to intentionally attempted to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location.
In the present case, it is inconceivable that the Respondent was unaware of the Complainant and its trademark rights when it registered the disputed domain name. The disputed domain name is composed of the Complainant’s distinctive SIMYO trademark in its entirety together with non-distinctive elements. The website that is linked to the disputed domain name copies essential elements of the Complainant’s website and trademarks. As a result, it is apparent that the Respondent had the Complainant in mind when registering the disputed domain name.
Finally, the Respondent is using the Complainant’s trademark without authorization to sell products that are similar to the Complainant’s products. The products are offered at prices much lower than what is normally available on the general market which calls their legitimacy into question. Doing so, the Respondent tries to intentionally attract Internet users to visit his website for commercial gain, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the website or location and of the products offered for sale on the website (see Simyo GmbH v. José Castrellón, CyberCast,WIPO Case No. D2014-1660).
Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the disputed domain name was registered and is being used 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.
Flip Petillion
Sole Panelist
Date: February 27, 2015
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