The Complainant is Tricentis GmbH of Vienna, Austria, represented by LegaLogic Consulting, India.
The Respondent is Anju Singhal, Tricent Software Pvt Ltd of Gurgaon, Haryana, India. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 8, 2017. On August 8, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 9, 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 August 14, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 3, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 4, 2017.
The Center appointed Benoit Van Asbroeck as the sole panelist in this matter on September 6, 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, Tricentis, is a software testing company founded in Austria. In addition to its headquarters in Austria, it has offices in Germany, Switzerland, Australia, the United States of America (the "United States") and India. The Complainant provides international services to industries including, amongst others, the financial, commerce, insurance, telecommunications and software industries.
The Complainant submitted evidence that it holds trademark rights for TRICENTIS (the "Trademarks") in various countries for classes 9 and/or 42, including, amongst others, an Austrian semi-figurative mark registered on August 28, 2007, and a European word mark as well as a European semi-figurative mark respectively registered on December 16, 2016 and December 15, 2016. An international semi-figurative trademark application designating the European Union and the United States was registered on February 1, 2010. The Complainant also filed applications for three TRICENTIS marks in India in 2017. The Complainant is also the owner of the domain name since April 13, 2007.
The disputed domain name was registered on January 5, 2010, and resolves to a website with a "Tricent Software" logo and purporting to offer various software-related services and products. 5. Parties' Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case, as follows:
(a) The disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant contends that the disputed domain name is confusingly similar to the registered rights in which the Complainant has rights. It contains the word "tricent" as its dominant element, which is similar to the Complainant's Trademarks. According to the Complainant, this factor, combined with the fact that the disputed domain name purports to be related to the information technology sector in which the Complainant is active, leads to a high likelihood of confusion in the minds of the public.
Furthermore, relying on BPCE v. Moises Barron,WIPO Case No. D2017-0411 and on Microsoft Corporation v. My Speedy Net Phone,WIPO Case No. D2003-0359, the Complainant contends that the word "software" is descriptive and indicative of a website related to the information technology sector. Therefore, it does not serve to distinguish the disputed domain name from the Complainant's Trademarks.
Moreover, the Complainant asserts that it has operations in India through its sister company and that the Respondent appears to be in India as well, which further increases the likelihood of confusion.
(b) The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that it has rights in TRICENTIS and that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that it has never assigned, licensed, sold, transferred or in any way authorized the Respondent to use or register its Trademarks.
The Complainant asserts that it has been using its Trademarks long before the disputed domain name was registered and that the disputed domain name is confusingly similar to its Trademarks.
According to the Respondent, it follows from the above that the Respondent does not have any rights or legitimate interests in the disputed domain name.
(c) The disputed domain name was registered and is being used in bad faith.
The Complainant submits that the disputed domain name has been registered and used in bad faith by the Respondent.
According to the Complainant, the government records from the Ministry of Corporate Affairs in India (country where the Respondent is located according to its contact details) show that there is no company by the name of "Tricent Software". Moreover, the contact details of the Respondent provided on its website and on "WhoIs" would be false.
Therefore, the Complainant concludes that the Respondent has registered the disputed domain name for the purpose of selling, renting or transferring the disputed domain name for valuable consideration, or in order to prevent the Complainant from using it.
The Complainant further submits that by claiming to be a registered company and misleading the public by putting up wrong information about company and contact details, the Respondent is using the disputed domain name in bad faith.
Finally, the Complainant contends that its rights in the Trademarks predate the Respondent's registration of the disputed domain name by several years. Therefore, the Complainant submits that the Respondent would have acquired the disputed domain name with the ulterior motive to cash in on the goodwill of the Complainant's famous Trademarks. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Substantive Elements of the Policy
Paragraph 15(a) of the Rules instructs the Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable".
Notwithstanding a respondent's default, the complainant must nevertheless still establish each of the three elements required by paragraph 4(a) of the Policy (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 2.1 and section 4.3, and the relevant decisions cited therein). Nonetheless, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and, in the absence of exceptional circumstances, draw such inferences as it considers appropriate pursuant to paragraph 14(b) of the Rules.
As a result, asserted facts that are not unreasonable will be taken as true by this Panel.
Finally, in accordance with paragraph 4(a) of the Policy, in order to decide on the remedy sought by the Complainant, this Panel will examine whether each of the following three elements are present:
(i) the disputed domain name registered by the Respondent 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.
Consequently, this Panel shall further analyse the eventual concurrence of these three grounds in the present case. B. Identical or Confusingly Similar
The Complainant is required to establish the two following elements: (1) that it has trademark rights, and, if so, (2) that the disputed domain name is identical or confusingly similar to its trademark(s).
This Panel finds that the Complainant has clearly evidenced that it has registered trademark rights to TRICENTIS.
Furthermore, the disputed domain name almost fully incorporates the Complainant's TRICENTIS Trademarks in which the Complainant has exclusive rights. In light of the services of the Complainant and the Respondent, the word "software" does not constitute an element so as to avoid confusing similarity for purposes of the Policy (Valero Energy Corporation and Valero Marketing and Supply Company v. Valero Energy,WIPO Case No. D2017-0075).
On the basis of the foregoing findings, and according to paragraph 4(a)(i) of the Policy, this Panel finds and concludes that the disputed domain name is confusingly similar to the Complainant's TRICENTIS Trademarks. C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists circumstances, in particular but without limitation, which, if found by the Panel to be proved, demonstrate the Respondent's rights or legitimate interests in the disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy reads:
"When you receive a complaint, you should refer to paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
It is the consensus view of UDRP panels, with which this Panel agrees, that a prima facie case advanced by the complainant is generally sufficient for the complainant to satisfy the requirements under paragraph 4(a)(ii) of the Policy, provided that the Respondent does not submit any evidence demonstrating its rights or legitimate interests in the disputed domain name (AGUAS DE CABREIROA, S.A.U. v. Hello Domain,WIPO Case No. D2014-2087; Spigen Korea Co., Ltd., Spigen Inc. v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2016-0145; HubSpot, Inc. v. WhoisGuard Protected, WhoisGuard, Inc. / Steve Johnson,WIPO Case No. D2016-1338).
In the present case, taking into consideration the default of the Respondent, this Panel finds that the Complainant has submitted a sufficient prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, in view of the combined following factors:
- There is no evidence that the Respondent has been authorized or licensed to use the Trademarks or the dispute disputed domain name by the Complainant;
- There is no evidence that the Respondent has commonly been known by the disputed domain name;
- The Respondent's company, as presented on the website linked to the disputed domain name, does not seem to exist.
For all the foregoing reasons, this Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy identifies, in particular but without limitation, four circumstances which, if found by this Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy reads:
"For the purposes of paragraph 4(a)(iii), 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 you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
Each of the four circumstances in paragraph 4(b) of the Policy, if found, would be an instance of "registration and use of a domain name in bad faith."
The Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith (see Riches, McKenzie & Herbert LLP v. Musa, Hector,WIPOCase No. D2017-0318; Mills Brothers B.V., The Sting B.V. v. Private Proxy Registration,WIPO Case No. D2012-1142; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052).
In appropriate circumstances, the finding that a respondent has no rights or legitimate interests in a disputed domain name may lead to a finding of registration in bad faith (AGUAS DE CABREIROA, S.A.U. v. Hello Domain,WIPO Case No. D2014-2087). This Panel regards the circumstances of the present case as sufficient for a finding of registration in bad faith, in particular in light of the following elements:
- The disputed domain name is confusingly similar to Complainant's Trademarks;
- The disputed domain name was registered well after the Complainant obtained its first rights to the Trademarks, and in the same year as the Complainant expanded its business worldwide and registered its international Trademarks;
- The disputed domain name resolves to a website with a "Tricent Software" logo and purporting to offer software-related products and services, imitating the Complainant, who also offers software-related services; and
- The reputation of the Complainant in the software sector, in which the Respondent claims on its website to be active.
Moreover, the fact that the Respondent's company does not seem to exist and that all contact information provided by the Respondent seems to be false, leads the Panel to the conclusion, on the balance of probabilities, that the disputed domain name is being used in bad faith (see WIPO Overview 3.0, section 3.2.1 and the relevant decisions cited therein).
In light of the foregoing, this Panel finds that the disputed domain name was registered and is being used by the Respondent in bad faith under 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.
Benoit Van Asbroeck
Sole Panelist
Date: September 20, 2017
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