The Complainant is Geberit Holding AG of Jona, Switzerland, represented by Nameshield, France.
The Respondent is Hossein Taghavi of Tehran, Islamic Republic of Iran (“Iran”). 2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a China-C (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2016. On October 21, 2016, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On October 24, 2016, the Registrar transmitted by e-mail 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 31, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 20, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 21, 2016.
The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on November 28, 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 the owner of two international trademarks registered in various countries, amongst which is Iran. The trademark GEBERIT, registration number 571872, was registered on May 6, 1991. The trademark GEBERIT (figurative), registration number 878950, was registered on February 9, 2006.
The Complainant also owns various domain names containing the trademark GEBERIT. These are set out in Annex 5 of the Complaint.
The disputed domain name was registered on July 17, 2016 and resolved to a Farsi language website. From the documentation provided by the Complainant, it appears that the Respondent’s website displayed the Complainant’s GEBERIT trademark (including the GEBERIT figurative trademark). No translation of the contents of the Respondent’s website has been provided, and it is therefore not possible to determine what services are advertised on the website.
The Panel has attempted to access the website “www.” and notes that the domain name no longer resolves to the Farsi language website. For the purposes of its analysis, the Panel has examined the screenshots of the website as provided by the Complainant in its Complaint. 5. Parties’ Contentions A. Complainant
The Complainant is Geberit Holding A.G. The Complainant describes itself as a European leader in the field of sanitary products. The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s trademarks GEBERIT.
The Complainant alleges that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights. The Complainant alleges that the addition of the dash “-“, or the geographic term “Iran” or the addition of the generic Top-Level Domain (“gTLD”) “.com” is not sufficient to distinguish the disputed domain name from the Complainant’s trademark.
The Complainant also alleges that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant contends that this lack of legitimate interest is demonstrated by the fact that the Respondent is not affiliated with the Complainant or authorized by the Complainant in any way to use the trademark GEBERIT. The WhoIs of the disputed domain name is also Comrad Co – Hossein Taghavi. The Respondent is not known by the disputed domain name and thus is not known as “Geberit”. In addition, the Complainant claims that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods.
Finally, the Complainant alleges that the disputed domain name was registered and is being used in bad faith. The disputed domain name is confusingly similar to the Complainant’s trademark, branded goods, and domain names associated with the Complainant’s trademark. Given the distinctiveness of the Complainant’s trademark and reputation, and given the fact that the Complainant’s semi-figurative trademark appears on the website to which the disputed domain name resolves, the Complainant finds that the disputed domain name was registered with the full knowledge of the Complainant’s trademarks and uses it for the purpose of misleading and diverting traffic. In addition, the Respondent publishes pictures directly replicated from the Complainant’s website and is using the disputed domain name to simulate a website as a subsidiary of the Complainant. Finally, the Complainant contends that the Respondent’s failure to respond to a cease and desist letter may be considered a factor in finding bad faith registration and use of a domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). The Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a 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.
The Complainant must establish these elements even if the Respondent does not submit a Response. E.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000 0009). A. Identical or Confusingly Similar
The Panel concludes that the first element of paragraph 4(a) of the Policy is fulfilled.
The Panel agrees that the disputed domain name is confusingly similar to the Complainant’s GEBERIT trademark. The addition of the geographic term “Iran” does not assist in distinguishing the disputed domain name from the Complainant’s trademark, and may even suggest that there is a connection between the geographic location and the trademark. See e.g., The Ford Foundation v. MD Baharul Islam,WIPO Case No. D2014-1616.
The “.com” suffix should be also disregarded when evaluating the identity or similarity. See e.g., VAT Holding AG v. V,WIPO Case No. D2000-0607. Omitting the gTLD suffix, the Panel finds that the disputed domain name in this proceeding is confusingly similar to the GEBERIT trademark.
The Panel concludes that the first element of Policy paragraph 4(a) is fulfilled. B. Rights or Legitimate Interests
The Panel also concludes that the second element of paragraph 4(a) of the Policy is fulfilled.
The Complainant must show a prima facie case that the Respondent lacks rights or legitimate interests. See e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. The absence of rights or legitimate interests is shown if a respondent does not rebut the complainant’s prima facie case. Paragraph 4(c) of the Policy lists circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name, including (1) the use of the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.
The Complainant states that the Respondent has no authorization to use the Complainant’s trademark and that the Respondent is not known by the disputed domain name. The Complainant also states that the Respondent is not related in any way to the Complainant’s business.
The Respondent’s website displays the Complainant’s trademark. Without any need for further inquiry, the Panel finds that Respondent’s use of the Complainant’s trademark, without authorization and in a manner that creates confusion with the Complainant’s business, demonstrates that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Policy paragraph 4(a)(ii) is established. C. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith. See Policy, paragraph 4(b)(iv). UDRP panels may draw inferences about bad faith in light of the circumstances, including failure to respond to a Complaint and other circumstances. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The website to which users were routed also competes directly with the goods associated with Complainant’s marks. The equipment advertised by the Respondent are similar to those that can be found on the Complainant’s websites. This is frequently seen as evidence of use in bad faith. See, e.g., Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784. The Panel infers that Respondent deliberately attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant’s mark.
The Panel concludes that the disputed domain name was registered and is being used in bad faith under 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.
Nasser A. Khasawneh
Sole Panelist
Date: December 12, 2016
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