The Complainant is VKR Holding A/S of Horsholm, Denmark, internally represented.
The Respondent is Li Pinglong of Yanzhoushi, Zhejiansheng, China. 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 November 8, 2016. On November 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 11, 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 November 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 6, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 7, 2016.
The Center appointed Jonathan Agmon as the sole panelist in this matter on December 12, 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, VKR Holding A/S, a company incorporated in Denmark. The Complainant is the owner of the worldwide manufacturer of root windows and accessories, the VELUX Group. The Complainant has presence in 40 countries throughout the world, and sells its products in 90 countries. The Complainant operates in China since 1993.
The Complainant is the owner of numerous registered trademarks. For example: Chinese trademark registration number 11915484 VELUX, registered on June 14, 2014; Chinese trademark registration number 11227003 VELUX logo, with the registration date of December 14, 2013; Chinese trademark registration number 350160 VELUX logo, with the registration date of May 30, 1989, and more.
The disputed domain name was registered on March 18, 2016.
Currently, the disputed domain name resolves to a website of a company named Qu Jing Hong Cheng Industry Co., Ltd. 5. Parties' Contentions A. Complainant
The Complainant argues that the disputed domain name incorporates the Complainant's word mark VELUX, and that the addition of the letters "w" and "x" does not reduce the disputed domain name's confusing similarity with the Complainant's mark.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant further argues that the Respondent has offered miscellaneous products including sealing tape and aluminum foil composite paper on the disputed domain name's website, and which are commonly used in connection within the same distribution channels as the Complainant's products.
The Complainant further argues that the only distinctive element in the disputed domain name is the Complainant registered mark, which is a made up word and not a descriptive term.
The Complainant further argues that the Respondent must have been well aware of the Complainant and its rights before the disputed domain name was registered.
The Complainant further argues that the Respondent is not authorized by, affiliated with, endorsed by or connected to the Complainant, and in using the disputed domain name the Respondent intends to attract for commercial gain a proportion of Internet traffic which would otherwise have reached the Complainant's website.
For all of the above reasons, 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 A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The Complainant is the owner of numerous registered trademarks. For example: Chinese trademark registration number 11915484 VELUX, registered on June 14, 2014; Chinese trademark registration number 11227003 VELUX logo, with the registration date of December 14, 2013; Chinese trademark registration number 350160 VELUX logo, with the registration date of May 30, 1989, and more.
The disputed domain name reproduces entirely the Complainant's VELUX trademark with the addition of the letters "wx" and the addition of the generic Top-Level Domain ("gTLD") ".com".
The mere addition of the letters "wx" and the gTLD suffix ".com", having no meaning by themselves or in combination with the Complainant's trademark, does not have the capacity to distinguish the disputed domain name from the Complainant's registered trademark and is disregarded when comparing the disputed domain name with the Complainant's trademark. See Volkswagen AG v. Todd Garber,WIPO Case No. D2015-2175; see also Dassault (Groupe Industriel Marcel Dassault) v. Ma Xiaojuan,WIPO Case No. D2015-1733; Lego Juris A/S v. Chen Yong,WIPO Case No. D2009-1611; Dr. Ing. h.c. F. Porsche AG v. zhanglei,WIPO Case No. D2014-0080.
Consequently, the Panel finds that the Complainant has shown that the disputed domain name is confusingly similar to the VELUX trademark in which the Complainant has rights. B. Rights or Legitimate Interests
Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1.
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests.
The Panel finds that the Complainant has established a prima facie case in this regard, inter alia, due to the fact that the Complainant has not licensed or otherwise permitted the Respondent to use the Complainant's trademarks or a variation thereof and the evidence presented indicates that the Respondent is not engaged in a bona fide offering of goods or services.
The Respondent has not submitted any substantive Response to the Complaint and did not provide any explanation or evidence to show any rights or legitimate interests in the disputed domain name sufficient to rebut the Complainant's prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Complainant must show that the Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned a registration for the VELUX trademark since at least the year 1989. It is suggestive of the Respondent's bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name (Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735).
The disputed domain name is confusingly similar to the Complainant's trademark. Previous UDRP panels have found that "[a] likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant's site to the Respondent's site". (See E, Inc. v. Triple E Holdings Limited,WIPO Case No. D2006-1095.) To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith.
Having regard to the evidence submitted by the Complainant, in particular the website the Respondent had operated under the disputed domain name, the Panel finds that the disputed domain name was registered and used by the Respondent with knowledge of the Complainant. The Respondent's actions therefore constitute bad faith registration and use of the disputed domain name. (See Herbalife International, Inc. v. Surinder S. Farmaha,WIPO Case No. D2005-0765, stating that "the registration of a domain name with the knowledge of the complainant's trademark registration amounts to bad faith".)
Also, the disputed domain name resolves to a website with miscellaneous products including sealing tape and aluminum foil composite paper, and which are commonly used in connection within the same distribution channels as the Complainant's products. The present case falls into such appropriate circumstances where the disputed domain name resolves to an active webpage where the Respondent used the website for commercial gain, where Internet users might wrongly believe it is affiliated, endorsed or connected with the Complainant.
Based on the evidence that was presented to the Panel, including the Complainant's registered trademark, the website operated on the disputed domain name, and the Respondent's failure to answer the Complaint, the Panel finds that the disputed domain name was registered and is being used in bad faith.
Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden 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.
Jonathan Agmon
Sole Panelist
Date: December 26, 2016
Full & Egal Universal Law Academy