Complainant is Freistaat Bayern of Munich, Germany, represented by Bettinger Scheffelt Kobiako von Gamm, Germany.
Respondent is Lahdo Algul of Füssen, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with PSI-USA, Inc. dba Domain Robot (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 14, 2016. On December 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 15, 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.
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 Respondent of the Complaint, and the proceedings commenced on January 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 25, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 26, 2017.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on January 30, 2017. 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 the Free State of Bavaria, a German public body, which, inter alia, is the owner of the royal castle "Neuschwanstein", being one of the most famous tourist attractions in the world.
Complainant has provided evidence that it is the owner of the following registered trademarks relating to the designation "Neuschwanstein", all of which clearly predate the registration of the disputed domain name and all of which enjoy protection in Germany where Respondent is residing, namely:
- Word mark NEUSCHWANSTEIN, Deutsches Patent- und Markenamt (DPMA), Registration No.: 30544198; Registration Date: October 4, 2005; Status: Active;
- Word mark NEUSCHWANSTEIN, DPMA, Registration No.: 39904763, Registration Date: March 25, 2004; Status: Active;
- Word mark NEUSCHWANSTEIN, European Union Intellectual Property Office (EUIPO), Registration No.: 010144392, Registration Date: December 12, 2011; Status: Active.
The disputed domain name was first registered on January 6, 2016. Complainant has provided evidence that at some point before the filing of this Complaint, the disputed domain name redirected to a website at "www." offering visitor tickets to a variety of castles, inter alia, the Neuschwanstein Castle, for sale.
Complainant requests that the disputed domain name be transferred to Complainant. 5. Parties' Contentions A. Complainant
Complainant contends that the term "Neuschwanstein" is an invented word which was given to the Neuschwanstein Castle in the year 1886; it is not a geographical term as there is no city or region with this name. Moreover, Complainant asserts that the NEUSCHWANSTEIN trademark is famous throughout the world and exclusively connected with the Neuschwanstein Castle and the products sold thereunder.
Complainant suggests that the disputed domain name is confusingly similar to Complainant's NEUSCHWANSTEIN trademark, as it incorporates the latter in its entirety, simply adding the generic term "ticket".
Complainant also claims that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks and has not permitted Respondent to apply for or use any domain name incorporating the NEUSCHWANSTEIN trademark, (2) there is no evidence which suggests that Respondent trades under or is commonly known by the disputed domain name or the name "Neuschwanstein" and (3) Respondent apparently is not using, or is making demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services, but rather for the unauthorized sale of visitor tickets to the Neuschwanstein Castle.
Finally, Complainant argues that the disputed domain name was registered and is being used by Respondent in bad faith since (1) given the worldwide fame of the NEUSCHWANSTEIN trademark which consists of an invented term, it is inconceivable that Respondent registered the disputed domain name without knowledge of Complainant's rights in that name, (2) Respondent's activity under the disputed domain name, namely the selling of visitor tickets to the Neuschwanstein Castle for commercial gain, clearly demonstrates that Respondent intended to attract potential purchasers to his website for commercial gain profiting from the Internet users' confusion. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That 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.
Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel is to decide the dispute solely based upon the Complaint. A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name is confusingly similar to the NEUSCHWANSTEIN trademark in which Complainant has shown to have rights.
The disputed domain name incorporates the NEUSCHWANSTEIN trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see, e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.9), that the addition of a generic or descriptive term or geographic wording to a trademark in a domain name is normally insufficient in itself to avoid the finding of confusing similarity under the first element of the UDRP. Accordingly, the mere addition of the generic term "ticket" (which can even be understood to refer to Complainant's core business of selling tickets for visiting the Neuschwanstein Castle) is not at all capable to dispel the confusing similarity arising from the incorporation of Complainant's NEUSCHWANSTEIN trademark in the disputed domain name.
Therefore, the first element under the Policy set forth by paragraph 4(a)(i) in the case at hand is fulfilled. B. Rights or Legitimate Interests
The Panel is further convinced that on the basis of Complainant's undisputed contentions, Respondent apparently has neither made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent makes a legitimate noncommercial or fair use thereof without intent for commercial gain.
Respondent has not been authorized to use Complainant's NEUSCHWANSTEIN trademark, neither as a domain name nor in any other way. Also, there is no reason to believe that Respondent's name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with that name.
Finally, Respondent so far has neither made use of the disputed domain name for a bona fide offering of goods or services nor for a legitimate noncommercial or fair use. On the contrary, at some point before the filing of this Complaint, Respondent apparently redirected the disputed domain name to a website at "www." where he offered, inter alia, visitor tickets to the Neuschwanstein Castle for sale without any authorization by Complainant to do so.
Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview 2.0 paragraph 2.1). In the case at hand, Respondent did not reply to Complainant's allegations as they were included in the Complaint duly notified to Respondent by the Center on January 5, 2017.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
The Panel takes the view that the redirection of the disputed domain name, which is confusingly similar to Complainant's NEUSCHWANSTEIN trademark, to a website at "www." and offering visitor tickets to the Neuschwanstein Castle in an apparently fraudulent manner, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to his own website by creating a likelihood of confusion with Complainant's NEUSCHWANSTEIN trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website. Such circumstances are evidence of registration and making use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that also the third element under the Policy as set forth by paragraph 4(a)(iii) is fulfilled and that, accordingly, Complainant has satisfied all of the three requirements of paragraph 4(a) 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 Complainant.
Stephanie G. Hartung
Sole Panelist
Date: February 7, 2017
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