The Complainant is VKR Holding A/S of Hørsholm, Denmark, internally represented.
The Respondent is Domain Admin, Whois protection, this company does not own this domain name s.r.o. of Praha, Czechia / Hulmiho Ukolen, Poste restante of Helsinki, Finland. 2. The Domain Name and Registrar
The disputed domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD aka Hebei International Trading (Shanghai) Co., Ltd dba HebeiD (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on February 22, 2017. On February 22, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 23, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 1, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 7, 2017. The Center transmitted an email in English and Finnish to the Parties regarding the language of the proceeding on March 1, 2017. The Complainant requested that English be the language of the proceeding on March 3, 2017. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amended 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 in English and Finnish of the Complaint, and the proceedings commenced on March 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 30, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 31, 2017.
The Center appointed George R. F. Souter as the sole panelist in this matter on April 10, 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. 4. Factual Background
The Complainant is a Danish company which has, since the 1940's, been in the business of designing and manufacturing roof windows and other products such as sun tunnels, blinds and solar hot water systems, under its VELUX trademark. It has been active in the Czechia through a Czech subsidiary since 1990.
The Complainant has registered it's VELUX trademark widely, owning some 450 registrations internationally, and details of these registrations have been supplied to the Panel. These registrations include Czech registration number 166757, dated November 26, 1987, in respect of the trademark VELUX in classes 6, 19, 20 and 24.
The disputed domain name was registered on March 14, 2016. It is currently being used in connection with a pay-per-click website featuring links to the sale of products, such as blinds, which compete with those of the Complainant. 5. Parties' Contentions A. Complainant
The Complainant alleges that the disputed domain name is confusingly similar to its VELUX trademark, containing it's VELUX trademark in its entirety, together with the mere addition of the descriptive or non-distinctive element "www".
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular, that it is not known by the disputed domain name, and its commercial use of the disputed domain name is not legitimate in that it is being used in connection with a website featuring links to the sale of products competing with those of the Complainant.
The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with a website featuring links to competing products to those of the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of Proceedings
As a preliminary matter, the Complaint was filed in English. An enquiry by the Center to the Registrar with whom the disputed domain name is registered, however, disclosed that the language of the registration agreement is Finnish. As the Complainant requested that the language of these proceedings should be English, and as the Respondent did not avail itself of the opportunity to participate in these proceedings, the Panel exercises its discretion under the Rules, and decides that the language of the proceeding in this case shall be English. 6.2 Substantive Issues
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(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
It is well established in decisions under the UDRP that generic Top-Level Domain ("gTLD") indicators (e.g., ".com", ".info", ".net", ".org") may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name. The Panel agrees with this view and considers the gTLD indicator ".com" to be irrelevant in the present case.
It is well-established in prior decisions under the UDRP that the mere addition of a descriptive or non-distinctive element to a trademark in which the Complainant has rights is not sufficient to avoid a finding of confusing similarity. In Internet trading the element "www" is clearly descriptive or non-distinctive, and, in the circumstances of the present case where this element has been simply added to the Complainant's VELUX trademark, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel regards the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name may lead, in appropriate circumstances, to a finding that a disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case (i.e. the use of the website resolving to pay-per-click links and competitors, and the fact that that VELUX trademark was registered well before the disputed domain name), in which the only difference between the Complainant's trademark and the disputed domain name is the descriptive or non‑distinctive element "www", justifies a finding that the disputed domain name has been registered in bad faith, and the Panel, accordingly, finds that the disputed domain name was registered in bad faith.
It is well-established in prior decisions under the UDRP that use of a disputed domain name considered confusingly similar to a trademark in which a complainant has rights, in connection with a website featuring links to competing products to those of the complainant, constitutes use of the disputed domain name in bad faith. The Panel so finds in the circumstances of the present case, and, accordingly, finds that the Complainant has satisfied the requirements of 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.
George R. F. Souter
Sole Panelist
Date: May 1, 2017
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