The Complainant is Riemann Trading ApS of Hillerød, Denmark, represented by BrandIT GmbH, Switzerland.
The Respondent is Tuan Le of Ho Chi Minh, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 30, 2016. On September 30, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 6, 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 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 31, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 3, 2016.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on November 9, 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 Riemann Trading ApS, a Danish corporation which manufactures specialized skin care products.
The Complainant has established that it is the owner of the International Trademark Registration Number. 770743 PESPIREX in classes 3 and 5, which designates several countries all over the world, including Viet Nam.
The above international trademark PERSPIREX was registered on November 21, 2001 and predates the registration of the disputed domain name.
The Complainant has also been shown to be the holder of many domain names under generic Top-Level Domains ("gTLDs") and country-code Top-Level Domains ("ccTLDs") containing the term "perspirex", for example, (created on March 7, 1997), (created on March 11, 1997), and (created on May 10, 2000).
The Complainant uses these domain names to redirect to a website through which it informs potential customers about its PERSPIREX mark and its products and services.
The disputed domain name was registered on April 22, 2016. The disputed domain name resolves to a website with the look and feel of an official PERSPIREX website, which reproduces the PERSPIREX trademark. 5. Parties' Contentions A. Complainant
The Complainant claims that the disputed domain name is confusingly similar to the Complainant's PERSPIREX registered trademark; that the Respondent has no rights or legitimate interests whatsoever with respect to the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order for the Complainant to obtain a transfer of the disputed domain name, paragraphs 4(a)(i) – (iii) of the Policy require that the Complainant must demonstrate to the Panel 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 that it has rights in the trademark PERSPIREX and has stated that the addition in the disputed domain name of the term "25Ml", which makes reference to the fact that the PERSPIREX roll-on antiperspirant is available solely in a 25 milliliters size, is not sufficient to avoid confusion.
This Panel agrees with the Complainant's contention and previous UDRP decisions, which affirmed that the addition of a generic term (be it a geographical expression and/or a descriptive term of goods or services) is not sufficient to avoid confusion but, on the contrary, in some circumstances this addition can even increase the chances of confusion.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
This Panel finds that the Complainant has made out a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent has no connection or affiliation with the Complainant, and the Complainant has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant's trademark. The Respondent does not appear to be commonly known by the name "perspirex" or by a similar name. The Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name, nor any use in connection with a bona fide offering of goods or services,. Indeed, the Respondent is using the disputed domain name to display a website which has the look and feel of an official PERSPIREX website. In fact, the Respondent is using the disputed domain name to attract Internet users to its website, where the Respondent claims to be selling PERSPIREX-branded products from Denmark. The Respondent's website including the PERSPIREX trademark appears prominently on the top left and strongly suggests that there is a connection with the Complainant. Owing to the fact that the Respondent has no connection or affiliation with the Complainant, and that the Complainant has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant's trademark, the Panel can think of no possible legitimate justification for this use, and the Respondent has not come forward with any explanation that demonstrates any rights or legitimate interests in the disputed domain name.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel, on the basis of the evidence presented, accepts and agrees with the Complainant's contentions that the disputed domain name was registered in bad faith and that it has been used in bad faith.
Indeed, the Complainant gives several sound bases for its contention that the disputed domain name was registered in bad faith and that it has been used in bad faith.
Particularly relevant are the Complainant's unchallenged assertions (which the Panel accepts) that the Respondent is using the disputed domain name in order to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of its website; the fact that it is inconceivable that Respondent was not aware of the Complainant's rights in the trademark PERSPIREX when registering the disputed domain name; and the fact that if Respondent did have legitimate purposes in registering and using the disputed domain name it would have responded to the Complainant's cease and desist letter, or filed a Response in these proceedings.
The Panel finds that the disputed domain name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) 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.
Fabrizio Bedarida
Sole Panelist
Date: November 16, 2016
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