The Complainant is Redcoon GmbH of Aschaffenburg, Germany, represented by Boehmert & Boehmert, Germany.
The Respondent is Martin Mueller, Mueller of Hamburg, Germany. 2. The Domain Names and Registrar
The disputed domain names and are registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2015. On June 15, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 16, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 18, 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 the same day.
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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 22, 2015. In accordance with paragraph 5(a) of the Rules, the due date for Response was July 12, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2015.
The Center appointed Brigitte Joppich as the sole panelist in this matter on July 27, 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 paragraph 7 of the Rules. 4. Factual Background
The Complainant is a discount online store for electronic products focusing on household appliances and consumer electronics. The company, headquartered in Aschaffenburg, Germany, was established in 2003 and today operates in several European countries with online stores, inter alia at “”, “”, and “”. Since 2011, the Complainant is part of the Media-Saturn group, Europe’s largest retailer for household appliances and consumer electronics.
The Complainant is registered owner of the Community Trademark no. 008776511 REDCOON, which has been registered on June 15, 2010 in connection with goods and services in classes 16 and 35 (hereinafter referred to as the “REDCOON Mark”).
The disputed domain names have been registered on May 4, 2015 and May 28, 2015, respectively. They have been used in connection with a website offering consumer electronics and household appliances.
The Complainant sent a notice and take-down letter to the provider used by the Respondent for hosting the website at the disputed domain name on May 27, 2015, who blocked the website within a few hours. Only one day later, the Respondent registered the disputed domain name , which was then connected to the very same online store. 5. Parties’ Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is given in the present case.
(1) The disputed domain names are confusingly similar to the REDCOON Mark, which precedes the Respondent’s registration of the disputed domain names by many years, and cause a likelihood of confusion on behalf of Internet users who are likely to be deceived about the true origin and source of the websites at the disputed domain name.
(2) The Respondent has no rights or legitimate interests in the disputed domain names as the Complainant has not authorized, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Complainant’s REDCOON Mark or any similar marks, and as the Respondent’s use of the disputed domain names in connection with a fake online shop for fraudulent purposes is illegitimate.
(3) The disputed domain names were registered and have been used in bad faith. With regard to bad faith registration, the Complainant argues that, based on the market position and reputation of the Complainant in this field, the Respondent was well aware of the Redcoon retail business operated by the Complainant when registering the disputed domain names, and chose the disputed domain names for the only purpose to deceive customers about the source of its websites or at least to create a proximity to the retail business of the Complainant. With regard to bad faith use, the Complainant contends that the Respondent used the disputed domain names in connection with fraudulent websites mirroring the look and feel of the Complainant’s own website and that the Respondent’s activities are a clear indication of bad faith use under paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the disputed domain names are 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 names; and
(iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The disputed domain names are visually and aurally similar to the REDCOON Mark and therefore confusingly similar to such mark under paragraph 4(a)(i) of the Policy. The mere addition of the letter “z” is unsuitable to hinder a finding of confusing similarity (see A, Inc. v. Oluseyi Ikhizamah,WIPO Case No. D2002-1168 (); F. Hoffmann-La Roche AG v. Berger Charlie,WIPO Case No. D2014-0580 ()), as is the replacement of the letter “o” by the number “0” (see Guccio Gucci S.p.A. v. Lin Shi Jiang,WIPO Case No. D2013-2164 ( et al.); Nintendo of America Inc. v. Max Maximus,WIPO Case No. D2000-0588 ()).
Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the respective domain name, it is the consensus view among UDRP panels that a complainant has to make only a prima facie case to fulfill the requirements of paragraph 4(a)(ii) of the Policy. As a result, the burden of coming forward with evidence of the respondent’s rights or legitimate interests in the domain name will then shift to the respondent.
The Panel finds that the Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain names. The Panel finds that the Complainant has fulfilled its obligations under paragraph 4(a)(ii) of the Policy.
The Respondent did not provide any evidence with regard to rights or legitimate interests in the disputed domain names.
Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either.
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain names under paragraphs 4(a)(ii) and 4(c) of the Policy. C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent registered the disputed domain names with full knowledge of the Complainant’s REDCOON Mark for the following reasons: The Respondent is located in Germany, the Complainant’s home country, the REDCOON Mark is well-established, the Respondent offered a product range on the website at the disputed domain names similar to that of the Complainant, and the Respondent registered the disputed domain name only one day after his earlier disputed domain name was taken offline by the hosting provider in charge.
As to bad faith use, by using the disputed domain names in connection with an online shop similar to that of the Complainant, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant’s website to its own for commercial gain as set out in paragraph 4(b)(iv) of the Policy.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) 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 names and be transferred to the Complainant.
Brigitte Joppich
Sole Panelist
Date: August 6, 2015
Full & Egal Universal Law Academy