Complainant is Studierendenwerk Stuttgart of Stuttgart, Germany, represented by BRP Renaud und Partner mbB, Germany.
Respondent is Tesmin Wright of Seatac, Washington, United States of America ("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 April 26, 2016. On April 27, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 28, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On May 4, 2016, Complainant filed an amendment to the Complaint.
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 the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 26, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 27, 2016.
The Center appointed Peter Wild as the sole panelist in this matter on May 31, 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 is organized as a German institution under Public Law. It is active in the field of advising and supporting students in a range of fields including finances, housing and other aspects of student life. Complainant owns German trademark registration 302014036664 STUDIERENDENWERK STUTTGART and device, filed on August 11, 2014 and registered on September 30, 2014 and the domain name which points to a portal for its services.
Respondent registered the disputed domain name on April 2, 2015. When this Panel visited the website under the disputed domain name on June 3, 2016, a website with information on visual effects and user-targeted advertising was visible. 5. Parties' Contentions A. Complainant
According to Complainant, it is organized as a German institution under Public Law. It is active in the field of advising and supporting students in a range of fields including finances, housing and other aspects of student life. Complainant owns German trademark registration 302014036664 STUDIERENDENWERK STUTTGART and device, filed on August 11 2014 and registered on September 30, 2014 and the domain name which points to a portal for its services.
Complainant claims that the disputed domain name is confusingly similar to its German trademark STUDIERENDENWERK STUTTGART and device, that Respondent has no rights or legitimate interests in the disputed domain name and that it is using and has registered the disputed domain name in bad faith by copying the website operated under Complainant's domain name.
Complainant further claims that Respondent is not known by the disputed domain name. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant's German trademark STUDIERENDENWERK STUTTGART and device consists of the words STUDIERENDENWERK STUTTGART and a smaller, colored device element. This Panel finds that there is dominance of the word elements in this trademark for the purposes of the Policy. Also, as figurative, stylized or design elements in a trademark are incapable of being represented in a domain name, such elements are typically disregarded for the purpose of assessing identity or confusing similarity, with such assessment generally being between the alpha-numeric components of the domain name, and the dominant textual components of the relevant mark.
See Casa Editorial El Tiempo, S.A. v. Montanya Ltd,WIPO Case No. D2009-0103.
The panel finds that the disputed domain name is confusingly similar to Complainant's trademark and the first element of the Policy is met. B. Rights or Legitimate Interests
Complainant asserts that Respondent is using the disputed domain name for a website which looks exactly like Complainant's website, most unfortunately without submitting corresponding evidence so that the Panel cannot conclusively rely on the allegation as the basis of this decision.
Whether Respondent has rights or legitimate interests in the disputed domain name must be assessed taking into account the manner in which Respondent uses the disputed domain name. In the circumstances, it is difficult to see how Respondent's conduct could be characterized as legitimate and thus permissible. There is no reference to any services which could be legitimately connected to STUDIERENDENWERK STUTTGART. Further, Respondent is not commonly known by the disputed domain name. In the absence of Respondent's comments, the Panel finds that Complainant has satisfied its burden to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel is satisfied that the second element of the Policy has been met. C. Registered and Used in Bad Faith
Complainant alleges that Respondent intentionally chose the disputed domain name which is similar to Complainant's trademark. Given that the trademark registration predates the disputed domain name and that Respondent did not rebut said allegation in the circumstances of this case, which the Panel finds an indication that the disputed domain name was registered in bad faith.
Complainant alleges that Respondent copied its website content. Complainant failed to submit evidence of such allegation and therefore, this cannot be the basis of this decision. The Panel visited Respondent's website under the disputed domain name on June 3, 2016, when a website with information on visual effects and user-targeted advertising was visible. This Panelist finds that Respondent is deemed responsible for content appearing on a website at the disputed domain name, even if Respondent may not be exercising direct control over such content - for example, in the case of advertising links appearing on an "automatically" generated basis. It is reasonable to assume that profit or "commercial gain" was made by Respondent or a third party, such as by the operator of an advertising revenue arrangement applicable to the registrant, or a domain name parking service used by the Respondent.
Respondent's website also offers a range of tutorials for download, indicating payment options from credit cards to bitcoin. This shows that the website intends to make commercial gain. The content which can be downloaded in the form of tutorials may also create an association with Complainant's student related services. As no such association exists, Respondent's behavior constitutes bad faith use for the purposes of the Policy.
Given the above evidence and the fact that Complainant's German trademark predates the disputed domain name by almost 8 months, the Panel finds the third element of the policy has been met. 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.
Peter Wild
Sole Panelist
Date: June 13, 2016
Full & Egal Universal Law Academy