The Complainant is Implenia Ltd. of Dietlikon, Switzerland, represented by Schellenberg Wittmer, Switzerland.
The Respondent is Joseph Meshach, implenia of Kumasi, Ghana. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 27, 2016. On September 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 30, 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 October 6, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 27, 2016.
The Center appointed Steven A. Maier as the sole panelist in this matter on November 3, 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 a Swiss company limited by shares. It provides construction services in connection in particular with major infrastructure projects. According to submissions contained in the Complaint, it has traded under the name and mark IMPLENIA since 2005, employs over 8,100 people and had a turnover in 2005 in the region of CHF 3.3 billion.
The Complainant is the owner of Swiss trademark registration number 543,156 for the word mark IMPLENIA, filed on November 14, 2005 and registered on March 23, 2006 in numerous classes. It is also the owner of three figurative Swiss trademarks including the word "Implenia" and a device, all of which were filed on March 23, 2006 and registered on July 27, 2006 in numerous classes.
The Complainant is the owner of the domain name and has used that domain name for the purposes of a website (the "Complainant's Website") since at least July 20, 2006.
The disputed domain name was registered on August 3, 2016.
According to evidence submitted by the Complainant by way of screen shots, the disputed domain name has been used for the purposes of a website which effectively replicated the Complainant's Website, save for the substitution of different contact details including a telephone number in Ghana. 5. Parties' Contentions A. Complainant
The Complainant submits that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant contends that the disputed domain name consists of the whole of its trademark IMPLENIA with the addition of the letters "gh", being the official geographical indicator for the country Ghana, the addition of which does not prevent a finding of confusing similarity.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that it has never authorized the Respondent to use its trademark IMPLENIA and that the Respondent has not commonly been known by the disputed domain name. It alleges that the Respondent is using the disputed domain name misleadingly to reproduce the Complainant's Website, which cannot constitute legitimate noncommercial or fair use of the disputed domain name.
The Complainant contends that the disputed domain name has been registered and is being used in bad faith. The Complainant contends that the Respondent must have been aware of its trademark IMPLENIA at the date of registration of the disputed domain name as is evident from the Respondent's use of the disputed domain name to reproduce the Complainant's Website. The Complainant submits that, by so reproducing the Complainant's Website but with false contact details, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of that website (paragraph 4(b)(iv) of the Policy).
The Complainant states that, while the Respondent's website was removed a few days prior to the filing of the Complaint, this should not prevent a finding of registration and use in bad faith.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has established that it is the owner of trademark registrations for the word mark IMPLENIA and for figurative trademarks which include that term. The disputed domain name comprises the name "implenia" together with the suffix "gh". The Panel accepts the Complainant's submission that the suffix generally refers to the country Ghana and is not effective to distinguish to disputed domain name from the Complainant's trademark. The Panel therefore finds that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests
In the view of the Panel, the Complainant's submissions referred to above give rise to a prima facie case for the Respondent to answer that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not participated in this administrative proceeding and has not provided any explanation for the registration or use of the disputed domain name, whether in accordance with any of the criteria set out in paragraph 4(c) of the Policy or otherwise. Having no other evidence of any rights or legitimate interests on the Respondent's part, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Panel accepts the Complainant's uncontradicted submissions that the Respondent has used the disputed domain name for the purposes of a website which effectively replicated the Complainant's Website but with the substitution of false contact details. The Panel concludes in the circumstances that the Respondent registered the disputed domain name with the Complainant's trademark in mind and, by using the disputed domain name, has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of that website (paragraph 4(b)(iv) of the Policy).
The Panel further accepts the Complainant's submission that the Respondent's removal of the offending website does not prevent finding of registration and use in bad faith where the other circumstances of the case so indicate (see e.g. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
The Panel therefore concludes that the disputed domain name has been 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.
Steven A. Maier
Sole Panelist
Date: November 8, 2016
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