The Complainant is Oracle International Corporation of Redwood Shores, California, United States of America ("United States") represented by Accent Law Group, Inc., United States.
The Respondent is Jyoti Mehta, Anunet Pvt Ltd of New Delhi, Delhi, India. 2. The Domain Name and Registrar
The disputed domain name is registered with B, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 17, 2016. On February 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 2016, the Registrar transmitted by email to the Center its verification response confirming that the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 23, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 14, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 15, 2016.
The Center appointed George R. F. Souter as the sole panelist in this matter on March 23, 2016. 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 one of the world's largest developers and marketers of computer hardware systems and enterprise software products – particularly its own brands of database management systems. As of 2011, Oracle is the second-largest software maker by revenue, after Microsoft and it has more than 420,000 customers (including 100 of the Fortune 100 corporations). Among its popular and well-known products are an object-relational database known, in its most current release, as ORACLE Release 12c, an open-source computer operating system called ORACLE Linux, and a line of network servers sold as the ORACLE SuperCluster. These and many other computing and database related products and services are sold throughout the world under the ORACLE trademark. The Complainant's customers have access to an extensive network of both live and online support services and resources and many local and national user groups have formed around the ORACLE products and services. Complainant extensively promotes its ORACLE products and services through a variety of advertising and promotional mediums. It utilizes ads in both general-interest and industry-focused magazines, on websites and social media pages, and at computing industry trade shows. The ORACLE products and services have been the subject of extensive unsolicited news coverage in high-profile outlets such as CNN, the New York Times, and others, and have also garnered marketing and industry awards including being ranked No. 16, by Interbrand, amongst "Best Global Brands" of 2015. The Complainant has supplied the Panel with details of its internationally extensive registrations of its ORACLE trademark, including in India, where it was registered on February 23, 1984 and where the Respondent is located, and with details of its extensive advertising activities under its ORACLE trademark.
The disputed domain name was registered on November 25, 2004. 5. Parties' Contentions A. Complainant
The Complainant alleges that the disputed domain name is confusingly similar to its trademark ORACLE, with the mere addition of a second "r" to the word "Oracle".
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name, in particular that, to the best of the Complainant's knowledge, the Respondent is not generally known by the disputed domain name, and that the Respondent fulfils none of the conditions set out in the Policy as constituting rights or legitimate interests.
The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with a website which operates as a pay per click website, directing users to third party websites. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(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 disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
It is well established in decisions under the UDRP that generic Top-Level Domain ("gTLD") indicators (e.g., ".com", ".info", ".net", ".org") may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name. The Panel agrees with this view and considers the gTLD indicator ".com" to be irrelevant in the present case.
In the Panel's opinion, the Complainants has demonstrated clear rights to its ORACLE trademark, and the Panel recognises it to be well-known. The disputed domain name incorporates the Complainant's ORACLE trademark in its entirety, with the mere addition of a second "r". The Panel is of the view that this addition is nothing more than a non-distinctive element. It is well-established in prior decisions under the UDRP that the mere addition of a descriptive or non-distinctive element to a trademark in which a complainant has rights is insufficient to avoid a finding of confusing similarity. In the circumstances of the present case, "orracle" is, in the Panel's opinion, clearly a non-distinctive variation of the Complainant's trademark. The Panel, consequently, finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
It is the consensus view of UDRP panels, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel regards the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity provided by these proceedings to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name, may lead, in appropriate circumstances, to a finding that a disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the Complainant's well-known trademark was incorporated in its entirety, with no additions beyond a non-distinctive element and the legally irrelevant ".com" gTLD indicator, as sufficient for the Panel to find that the disputed domain name was registered in bad faith.
The Panel is of the view that the use of a disputed domain name in connection with the use of a website with a pay per click facility directing users to third party websites is potentially damaging to the trademark owner and, in the circumstances of the present case, finds that it constitutes use in bad faith. Accordingly, the Panel finds that the disputed domain name is being used in bad faith, and that the Complainant has satisfied the requirements of paragraph 4(a)(iii). 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.
George R. F. Souter
Sole Panelist
Date: April 4, 2016
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