The Complainant is Komet Group GmbH of Besigheim, Germany, represented by Gleiss Große Schrell und Partner mbB, Germany.
The Respondent is Wen Zhang of Changsha, China. 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 July 11, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 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 July 17, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 6, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 7, 2017.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on August 11, 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
The Complainant is a German industrial group specialized in the fields of high precision drilling, reaming, mining, threading and process monitoring.
The Complainant is the owner of several trademark registrations amongst which are the following:
- European Union Trademark Registration No. 000504399 for the word mark KOMET, registered on July 8, 1999, to cover products and services in classes 7, 8, 9 and 42;
- Indian Trademark Registration No. 737980 for the word mark KOMET, registered on March 20, 1997, to cover products in class 7, successively renewed;
- Indian Trademark Registration No. 737981 for the word mark KOMET, registered on March 20, 1997, to cover products in class 8, successively renewed;
- Indian Trademark Registration No. 737982 for the word mark KOMET, registered on March 20, 1997, to cover products in class 9, successively renewed;
- International Trademark Registration No. 624261 for the word mark KOMET, covering China and Switzerland, registered on May 3, 1994 and successively renewed;
- United States of America Trademark Registration No. 1,967,862 for the word and device mark KOMET, registered on April 16, 1996, to cover products in classes 7 and 9, successively renewed.
The disputed domain name was registered on April 7, 2016 and is currently redirecting Internet users to Google’s India webpage. 5. Parties’ Contentions A. Complainant
According to the Complainant’s website, the Complainant is a German industrial group specialized in the fields of high precision drilling, reaming, mining, threading and process monitoring, with local presence or subsidiaries in Belgium, Denmark, Finland, France, United Kingdom of Great Britain and Northern Ireland, Ireland, Italy, Croatia, Netherlands, Norway, Austria, Poland, Portugal, Romania, Russian Federation, Sweden, Switzerland, Slovak Republic, Slovenia, Spain, Czech Republic, Turkey, Hungary, Egypt, Argentina, Australia, Brazil, China, India, Indonesia, Islamic Republic of Iran, Israel, Japan, Republic of Korea, Canada, Malaysia, Mexico, New Zealand, Philippines, Singapore, South Africa, Taiwan, Thailand, United States of America and Viet Nam (Annex E to the Complaint).
The disputed domain name, according to the Complainant must be considered confusingly similar to the Complainant’s trademarks, being the addition of the geographical term “India” an increase in the confusing similarity since it may suggest that the disputed domain name refers to the official website of the Complainant’s subsidiary in India.
The Complainant asserts that its use of the KOMET trademark and the foundation of its Indian subsidiary predates the registration of the disputed domain name, constituting prima facie evidence of the absence of Respondent’s rights or legitimate interests in the disputed domain name, therefore shifting to the Respondent the burden of providing evidence of its rights or legitimate interests in the disputed domain name.
According to the Complainant, the Respondent has clearly registered the disputed domain name to mislead and divert consumers, disrupting the Complainant’s business and tarnishing the Complainant’s reputation, which is known, in India, as “Komet India”.
Furthermore, the Complainant states that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name since it solely seeks to benefit from Internet users seeking information on the Complainant or on the Complainant’s Indian branch.
As to the bad faith of the Respondent, the Complainant contends that the use of the disputed domain name in connection with a sex-cam-website displaying links to a variety of different sexual content characterizes intentional diversion of Internet traffic to Respondent’s website for commercial gain based on the Complainant’s trademark, also creating a likelihood of confusion therewith as to source, sponsorship, affiliation or endorsement of the Respondent’s website.
Moreover, the Complainant asserts that the Respondent has engaged in a pattern of registering domain names confusingly similar to company names or well-known products such as , and , holding at least 44 different domain names unrelated to its business. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name 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.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present in order to obtain the transfer of the disputed domain name. A. Identical or Confusingly Similar
The Complainant has established rights in the KOMET trademark, duly registered in various jurisdictions.
The Panel finds that the disputed domain name merely reproduces the Complainant’s mark with the addition of the term “India” which is insufficient to avoid the confusing similarity, not impacting the overall impression of the disputed domain name which is dominated by the Complainant’s trademark.
The first element of the Policy has therefore been established. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that indicate a respondent’s rights or legitimate interests in a disputed domain name. These circumstances are:
(i) before any notice of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the disputed domain name. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules (see, e.g., Banco Bradesco S/A v. B Private Registrant, A Happy DreamHost Customer,WIPO Case No. D2010-2108). Nevertheless, the burden of proof is still on the Complainant to make a prima facie case against the Respondent.
In that sense, the Complainant indeed showed its local presence in India, having a local subsidiary and registered trademark rights which predate the registration of the disputed domain name, therefore constituting prima facie evidence of the absence of Respondent’s rights or legitimate interests in the disputed domain name.
Also, the absence of any indication that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name, that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, further demonstrate the absence of rights or legitimate interests in the disputed domain name.
The current redirection to Google India’s webpage of the disputed domain name and the alleged past redirection (the Complainant unfortunately has not produced evidence in that sense) to pornographic websites do not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Policy indicates in paragraph 4(b) that bad faith registration and use can be found in view of:
(i) circumstances indicating that the respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring them to the complainant who is the owner of a trademark relating to the disputed domain name or to a competitor of the complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the respondent has registered the disputed 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) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of the complainant; or
(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other 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 the Complainant was able to show that the Respondent is the owner of dozens of other domain name registrations which incorporate third parties’ well-known trademarks, and, on the other hand the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use of the disputed domain name this Panel concludes as to the registration and use of the disputed domain name in bad faith.
Indeed, the redirection of the disputed domain name to third parties’ websites which may create Internet traffic for commercial gain based on the Complainant’s trademark also characterizes a likelihood of confusion therewith as to source, sponsorship, affiliation or endorsement of the Respondent’s website.
Lastly, another factor which corroborate a finding of bad faith is the wrong information in the WhoIs records (non-existing address relating to the Respondent).
For the reasons stated above, the Respondent’s conduct amounts, in this Panel’s view, to bad faith registration and use of the disputed domain name. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4 (b) (ii) and (iv) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Wilson Pinheiro Jabur
Sole Panelist
Date: August 15, 2017
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