The Complainant is Ikano S.A. of Luxembourg, represented by Advokatfirman Lindahl, Sweden.
The Respondent is Daniel Mischler, AG of Wilen, Switzerland. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 29, 2017. On March 29, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 31, 2017, 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 April 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 26, 2017.
The Center appointed Edoardo Fano as the sole panelist in this matter on May 2, 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.
The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties.
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”. Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a Response from the Respondent.
The language of the proceeding is English, being the language of the Registration Agreement, as per paragraph 11(a) of the Rules. 4. Factual Background
The Complainant is Ikano S.A., parent company of the Ikano Group, an international company operating in the field of financial services, real estate, insurance and retail since it became independent from the company Ikea in 1988, although still owned by the same owners of the Ikea company.
The Complainant owns various registrations for the trademark IKANO, among which:
- European Union Trademark Registration No. 001991694 IKANO, registered on April 29, 2002.
The Complainant’s trademark IKANO is also registered in Switzerland, the home country of the Respondent:
- Swiss Trademark Registration No. P-488393 IKANO, registered on August 27, 2001.
The Complainant recently registered the new Top-Level Domain (“TLD”) “.ikano”.
The Complainant provided evidence in support of the above.
The disputed domain name was registered on April 9, 2016. At the time of filing the Complaint, the website at the disputed domain name is resolving to a parking page with sponsored links for financial services, credit cards and loans of the Complainant and other companies.
Prior to the Complaint, on October 21, 2016, the Complainant’s lawyers sent a cease and desist letter to the Respondent and the Respondent replied that the disputed domain name makes reference to the Ikano Japanese restaurants and that he personally knows the owner of the Ikano Group. 5. Parties’ Contentions A. Complainant
The Complainant states that the disputed domain name is confusingly similar to its trademark IKANO.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register the disputed domain name or to use its trademarks within the disputed domain name, nor is the Respondent commonly known by the disputed domain name.
The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith, since it was registered with the only purpose of disrupting the business of the Complainant and attracting Internet users for commercial gain by creating confusion with the Complainant’s trademark. B. Respondent
The Respondent has made no reply to the Complainant’s contentions and is in default. In reference to paragraphs 5(e) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward or are apparent from the record.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn (see, e.g., Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN,WIPO Case No. D2000-1080; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,WIPO Case No. D2007-0288. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed:
(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 Panel finds that the Complainant is the owner of the trademark IKANO both by registration and acquired reputation and that the disputed domain name is identical to the trademark IKANO.
It is also well accepted that a TLD suffix, in this case “.family”, may be ignored when assessing the similarity between a trademark and a domain name (see, e.g., VAT Holding AG v. V,WIPO Case No. D2000-0607). The disputed domain name incorporates the Complainant’s IKANO trademark in its entirety without alteration or addition.
The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is identical or confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Respondent has failed to file a response in accordance with the Rules, paragraph 5.
The Complainant in its Complaint and as set out above has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that the Respondent is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name, and the Panel is unable to establish any such rights or legitimate interests on the basis of the evidence in front of it.
The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that “for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that [the respondent has] registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that [the respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) that [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
As regards to the registration in bad faith of the disputed domain name, the existence of the Complainant’s trademark IKANO was certainly known by the Respondent since the content of the website to which the disputed domain name resolves consists of providing the same services as the Complainant.
The Panel further finds that, the disputed domain name is also used in bad faith since in the relevant website there are pay-per-click links, even in the case where they are automatically generated, mainly referring to the financial and banking services (including competitors of the Complainant) and the Respondent is therefore knowingly taking advantage from user confusion.
The above suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name in order to attract, for commercial gain, Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy.
The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied. 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 cancelled.
Edoardo Fano
Sole Panelist
Date: May 11, 2017
Full & Egal Universal Law Academy