The Complainant is OLX B.V. of LS Hoofddorp, the Netherlands, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Mustanser Hussain of Punjab, Pakistan, self- represented. 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 April 19, 2016. On April 20, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 20, 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 April 26, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 16, 2016. The Center received email communications from the respondent on May 3, 2016, May 4, 2016 and May 11, 2016. The Response was filed with the Center on May 15, 2016.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on May 27, 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 operates websites that feature classified advertisements that enable users to buy and sell goods, including vehicles, real estate, tickets and electronics; to solicit and offer services, such as babysitting, event services and repairs; to design and display advertisements; and to search for jobs and careers in various locations and industries. For a number of years, the Complainant has operated its business under the OLX trademark, and it has registered over 1,000 domain names incorporating the OLX trademark in several countries around the world.
The Complainant owns many trademark registrations worldwide, including the following:
European Union Mark No. 010881456 for OLX – registered September 25, 2012;
European Union Mark No. 004883741 for OLX Design – Registered March 5, 2007;
Pakistan Trademark No. 254718 for OLX Design – Registered August 19, 2008.
The Complainant’s online business has a significant presence in over 40 countries worldwide and is available in 50 different languages. The Complainant operates offices in Buenos Aires, Cape Town, Delhi, Sao Paulo, Rio de Janeiro, Lisbon and New York, and operates subsidiaries in Argentina, Pakistan and China.
The Complainant’s online platform has over 200 million unique users monthly, generating traffic of over 11 billion monthly page views, or approximately 360 million page views per day.
The disputed domain name was registered on August 10, 2015. At the time Complaint was filed the disputed domain name reverted to a website which featured online classified advertisements for vehicles, real estate, tickets and electronics. 5. Parties’ Contentions A. Complainant
Identical or Confusingly Similar
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s registered trademark for the mark OLX. The Complainant submits the addition of the “24-7” element, is a common expression meaning for 24 hours – 7 days a week, does not distinguish the disputed domain name from the Complainant’s registered trademark. Accordingly, the Complainant submits that the disputed domain name is confusingly similar to the Complainant’s OLX trademark under the Policy.
Rights or Legitimate Interests
The Complainant submits that the Respondent is not sponsored by or affiliated with the Complainant and has not been licensed or permitted to use the Complainant’s registered trademark OLX. The Complainant also submits that the Respondent is not commonly known by the OLX name or trademark, notes that the Respondent has used the disputed domain name in association with a website that has been deliberately designed to mimic the Complainant’s website, and to mislead Internet users seeking the Complainant’s website, diverting them to the Respondent’s website. The Complainant contends that this use does not constitute a bona fide offering of goods and/or services under the Policy.
Registered and Used in Bad Faith
The Respondent is alleged to have engaged in a pattern of activity designed to confuse Internet users into believing that the Respondent’s website at ”www.” is related to the Complainant’s website and business, by adopting a confusingly similar domain name and website content. The Respondent has deliberately designed his website to mimic the Complainant’s website, by replicating and using a similar layout, product categories and headings.
The Complainant submits that the Respondent must have known about the Complainant’s rights in the OLX mark, because the Complainant’s websites are so well known in the industry, and because the Respondent has copied the look and feel of the Complainant’s website.
Lastly, the Complainant contends that the Respondent failed to respond to the Complainant’s cease and desist letter dated October 1, 2015. B. Respondent
The Respondent has not submitted a formal response, but instead submitted three emails, which simply deny any wrongdoing with respect to the disputed domain name. The Respondent claims that he purchased the disputed domain name from the Registrar eight months prior to the Complaint being filed, and that he did so relying on the Registrar to provide a legitimate domain name. The Respondent further contends that the disputed domain name is not confusingly similar because of the addition of the term “24-7”. The Respondent also submits that these proceedings have interfered with the Respondent’s business and further development of his associated website. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(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 Panel finds that the Complainant does have registered trademark rights in the mark OLX by virtue of its trademark registrations, including those listed in section 4 of this decision.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark OLX. The addition of the descriptive term “24-7” does not serve to distinguish the domain name from the OLX trademark. The element 24-7 is commonly understood to mean 24-hours a-day, 7-days-a-week. As a reference to “around the clock” availability for online services, the term is functionally descriptive of the service provided.
Accordingly, the Panel finds that the Complainant has satisfied the first requirement under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
The Panel notes that the Respondent did not file any substantive responding materials in this proceeding, and therefore did not dispute any of the facts submitted by the Complainant. The Respondent merely submitted a bald denial of any wrongdoing, and did not provide any probative evidence in support of his claims to the disputed domain name. The Respondent’s attempt to blame the Registrar is entirely unfounded. Accordingly, the Panel finds that the Respondent is not commonly known by the name OLX, and was clearly never authorized or licensed by the Complainant to use the registered trademark OLX. Furthermore, the Panel is prepared to find that the registration and use of a confusingly similar domain name in association with a website that offers virtually identical services to those of the Complainant, along with what appears to be intentional copying of the look and style of the Complainant’s website, is not evidence of a bona fide offering of goods and services. Based on the evidence filed in these proceedings, the Panel finds that the Respondent does not have any rights or legitimate interests in the disputed domain name .
Accordingly, the Panel finds that the Complainant has satisfied the requirements under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Based on the evidence filed by the Complainant in support of its well-established reputation in the OLX mark, the Panel finds that the Respondent must have been aware of the Complainant’s registered trademark rights in the mark OLX when it registered the domain name on August 10, 2015. The Panel further concludes that the Respondent acted in bad faith by attempting to trade on the goodwill and reputation of the Complainant’s trademark by developing a website that offers virtually identical services to those of the Complainant. The Panel also finds that the Respondent has copied the look and feel of the Complainant’s website, which is further evidence that the Respondent was aware and had knowledge of the Complainant’s rights. The Panel finds that the Respondent registered a confusingly similar domain name to interfere with the Complainant’s business by diverting unsuspecting Internet users away from the Complainant’s website to the Respondent’s website.
In all these circumstances, the Panel finds that the Complainant has satisfied the requirements under 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 the Complainant.
Christopher J. Pibus
Sole Panelist
Date: June 6, 2016
Full & Egal Universal Law Academy