Complainant is Greatbatch Ltd. of Clarence, New York, United States of America ("United States" or "U.S."), represented by Hodgson Russ, LLP, United States.
Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States / Babara Burgess of Frisco, Texas, United States. 2. The Domain Name and Registrar
The disputed 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 March 23, 2016. On March 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent's 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 Respondent of the Complaint, and the proceedings commenced on March 31, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 20, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 21, 2016.
The Center appointed Martin Schwimmer as the sole panelist in this matter on May 2, 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
Complainant, Greatbatch Ltd., of Clarence, New York, has sold, among other things, medical devices and components such as pacemaker batteries, under the GREATBATCH trademark (the "Trademark") since 1970. Complainant owns incontestable U.S. trademark registrations covering the Trademark, including Registration No. 2103026, registered on October 7, 1997.
The date of creation of the disputed domain name is January 11, 2016.
Respondent is identified as Babara Burgess of Frisco, Texas. 5. Parties' Contentions A. Complainant
Complainant alleges that its Trademark is well known for medical devices and components. Its website states that its founder, Wilson Greatbatch, was the co-inventor of the first successful implanted pacemaker. It provides documentation of its U.S. trademark registrations, domain name registration for its domain name , and print-outs of its website at "www." in support of its contentions.
Complainant denies that Respondent has any license, permission, or authorization to use the Trademark.
The disputed domain name does not resolve at this time. However, Complainant attaches a print-out of an email exchange that was forwarded to it, indicating that someone purporting to use the email address "recruiting@" sent emails, presumably to jobseekers, appearing to solicit personally identifiable information, in the guise of recruiting for non-existent jobs with Complainant. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to Complainant's Trademark. Complainant easily establishes ownership of rights in the Trademark. The disputed domain name incorporates the Trademark in its entirety, with the addition of the descriptive term "jobs". The incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to such registered trademark (see AT&T Corp. v. William Gormally,WIPO Case No. D2005-0758).
Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's Trademark. B. Rights or Legitimate Interests
The second ground to be demonstrated by Complainant, according to the provisions of the Policy, is Respondent's absence of any rights or legitimate interests in the disputed domain name, per paragraph 4(c) of the Policy.
Previous UDRP panels have consistently held that it is sufficient for a complainant to prove a prima facie case that the respondent does not hold rights or legitimate interests in the domain name (see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455 and Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110). Once a prima facie case is shown, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating its rights or legitimate interests in the disputed domain name.
The Panel is satisfied that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the Trademark in a domain name or in any other manner. Complainant alleges that there is no such connection here. The Panel confirms there is no evidence of legitimate noncommercial or fair use.
In addition, Respondent has not submitted any reply to Complainant's contentions.
Therefore, in light of Complainant's prima facie case, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Complainant has submitted evidence that its GREATBATCH mark is sufficiently distinctive and well known such that, coupled with the absence of any other evidence in the record to the contrary, it is fair to presume that Respondent registered the disputed domain name with prior knowledge of Complainant's rights.
Additionally, Complainant's evidence of emails appearing to come from a "recruiting@" email address, suggests that Respondent utilizes the disputed domain name (and exploits the reputation of Complainant's Trademark) for what might be a scheme to improperly obtain personally identifiable information. Even if there is no full-blown scheme, the mere use of the disputed domain name to spam Internet users with non-existent job information, may harm Complainant's goodwill in its Trademark.
Furthermore, the Panel may also make negative inferences arising from Respondent's failure to respond. See, e.g., Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil,WIPO Case No. D2000-1409.
The Panel finds that Complainant has established that the disputed domain name was registered and is being used in bad faith, as outlined in 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 name be transferred to Complainant.
Martin Schwimmer
Sole Panelist
Date: May 4, 2016
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