The Complainant is Fenix Outdoor AB of Örnsköldsvik, Sweden, represented by Domain and Intellectual Property Consultants, DIPCON AB, Sweden.
The Respondent is Milen Radumilo of Bucharesti, Romania. 2. The Domain Name and Registrar
The disputed domain name is registered with Domain Name Root, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2016. On February 19, 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 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 March 3, 2016 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 amended Complaint on March 7, 2016. In response to a notification by the Center requesting the clarification of the Complaint regarding Registrar’s identity, the Complainant filed an amendment to the Complaint on March 7, 2016. In response to a notification by the Center requesting the clarification of the Complaint regarding reference to the disputed domain name the Complainant filed a second Amended Complaint on March 9, 2016.
The Center verified that the Complaint, together with the Amendment to the Complaint and the first and second Amended Complaints (all together named hereinafter as 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 March 9, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 29, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 30, 2016.
The Center appointed James Bridgeman as the sole panelist in this matter on April 7, 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 has an established business producing and selling outdoor clothing and equipment which it markets under the FJÄLLRÄVEN trademark and for which it holds a portfolio of trademark registrations including:
- Swedish National Trademark No. 1994/02165, filed on February 25, 1994 and registered on April 7, 1995 for goods in classes 18, 20, 22; and
- CTM registration number 011258324, filed on October 11, 2012 and registered on February 4, 2013 for goods in classes 18, 20, 22 and 25.
The disputed domain name was created on October 24, 2015 and resolves to a parking page displaying pay-per-click links including the FJÄLLRÄVEN trademark. 5. Parties’ Contentions A. Complainant
The Complainant submits that it is a leading manufacturer of outdoor clothing in Europe and relies on its rights in the FJÄLLRÄVEN trademark established through use in trade since 1978 and the trademark registrations described above.
The Complainant alleges that the disputed domain name is identical to its registered trademarks and submits that the addition of a generic Top-Level Domain (“gTLD”) “.com”, is irrelevant for the assessment of confusing similarity between its trademark and the disputed domain name.
The Complainant submits that the Respondent has no rights in the FJÄLLRÄVEN trademark; that the Respondent is not a licensee of the Complainant; and the Complainant has not given the Respondent any permission to register the FJÄLLRÄVEN trademark as a domain name.
The Respondent has used the disputed domain name to establish a website at “ällrä” which is filled with sponsored links to the Complainant’s products and the Complainant submits that this indicates that the disputed domain name is being used in bad faith because the Complainant has the exclusive right to use the FJÄLLRÄVEN mark. The Complainant also argues that the usage of the disputed domain name strongly suggests that the disputed domain name was registered with the Complainant’s FJÄLLRÄVEN mark in mind so as to commercially profit from misleading consumers searching for information about the Complainant’s business.
There is no evidence that the Respondent has been commonly known by the disputed domain name or that he is making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant submits that it is obvious that the Respondent was well aware of the Complainant’s trademark and business when registering the disputed domain name. The Complainant has used the FJÄLLRÄVEN trademark as early as 1978, decades before the disputed domain name was created on October 24, 2015.
Also the fact that the website to which the disputed domain name resolves includes sponsored links to the Complainant’s products demonstrates the Respondent’s knowledge of the Complainant’s trademarks and business.
The Complainant submits that the disputed domain name has been registered to commercially profit from the likelihood of confusion between the Complainant’s trademark and the disputed domain name and alleges that the Respondent is trying to take advantage of the FJÄLLRÄVEN trademark in order to draw traffic to its website.
The Respondent has failed to respond to a cease and desist letter which was sent to the Respondent by the Complainant on December 30, 2015. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4 of the Policy requires the Complainant to establish that:
(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
The Complainant has established rights in the FJÄLLRÄVEN trademark thought its established goodwill and ownership of the portfolio of trademark registrations described above.
This Panel finds that the disputed domain name is identical to the Complainant’s FJÄLLRÄVEN trademark and accepts the Complainant’s submissions that in the present case the gTLD “.com” may be ignored for the purpose of comparison. B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain name. The evidence on file shows that the disputed domain name is identical to the Complainant’s distinctive FJÄLLRÄVEN trademark and that the Complainant has not given any right or license to the Respondent to use its trademark as an Internet domain name or otherwise. The information on the WhoIs database indicates that the Respondent is not known by the FJÄLLRÄVEN name and there is no indication that the Respondent is using the disputed domain name for any bona fide noncommercial purpose.
In those circumstances the burden of production shifts to the Respondent. The Respondent has failed to discharge this burden and on the evidence this Panel finds that on the balance of probabilities the Respondent has no rights in the disputed domain name. C. Registered and Used in Bad Faith
This Panel accepts the Complainant’s submissions that the registrant was most probably aware of the Complainant’s business and reputation when the disputed domain name was registered on October 24, 2015. Since registration it is clear that the Respondent has been aware of the Complainant’s business and trademark because he has arranged for the disputed domain name to resolve to a website with links to the Complainant’s goods without the Complainant’s consent.
The Complainant has the exclusive rights to use the FJÄLLRÄVEN trademark. There is no evidence that the Respondent has any bond fide interest in establishing this website and because the website contains links to the Complainant’s goods and little else, on the balance of probabilities by using the disputed domain name in this manner, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s FJÄLLRÄVEN trademark as to the source, sponsorship, affiliation, or endorsement of his website or of a product or service on his website.
This Expert finds therefore that on the balance of probabilities 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.
James Bridgeman
Sole Panelist
Date: April 12, 2016
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