The Complainant is 8848 Altitude AB of Borås, Sweden, represented by Valea AB, Sweden.
The Respondent is Constance Siddiqui of Davenport, Iowa, United States of America (“US”). 2. The Domain Name and Registrar
The disputed domain name (the “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 October 13, 2017. On October 13, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 14, 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 October 19, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2017.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on November 13, 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 was established in 1990 when designing the equipment for the first successful Swedish ascent to the world’s highest mountain Mount Everest, at an altitude of 8,848 meters. The Complainant develops high performance clothing for outdoor sports, from family recreation to active professionals.
The Complainant owns the trademark 8848 ALTITUDE, as word marks as well as part of device marks, in several jurisdictions including the European Union (“EU”), US, Canada and China. See, for example, EU trademark No. 863982, registered on September 20, 2005. The Complainant also owns several domain names throughout the world containing the 8848 ALTITUDE mark distributed among generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains. The Complainant has retailers throughout Europe and operates internationally an e-commerce site through a website linked to the said domain names. The Complainant also sponsors athletes and sports events.
At the time of filing of the Complaint, and at the time of drafting this decision, the Domain Name resolved to a webpage that purports to sell the Complainant’s products. According to the Registrar, the Domain Name was registered on March 14, 2017. 5. Parties’ Contentions A. Complainant
The Complainant provides trademark registrations, and submits that its trademark is well known in the market. The Complainant argues that the Domain Name is confusingly similar to the Complainant’s trademark. The Domain Name incorporates the dominant part of the Complainant’s trademark and trade name. The added generic term “rea” is Swedish for “discount”. Several UDRP cases have recognized that incorporating the dominant part of a trademark can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark. The Domain Name is visually, phonetically and conceptually confusingly similar to the Complainant’s trademark and trade name.
The Complainant argues further that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the Complainant’s trademarks. There is no relationship between the Parties that justifies the registration of the Domain Name by the Respondent and nothing in the record, including the WhoIs information, suggests that the Respondent is commonly known by the Domain Name. The Respondent uses the Domain Name to a website that gives the impression that it originates from the Complainant. The website does not contain any notice informing that it is not related to the official website of the Complainant. On the contrary, the Respondent is referring to 8848 on the top of the website with similar font, it contains a mention of 2017 copyright for . According to the Complainant, the Respondent’s webpage is part of a scam, inter alia, to obtain personal information and credit card numbers.
As to bad faith, the Complainant argues that the Respondent must have known of the Complainant’s trademarks and products. The Complainant has documented the Respondent’s scam through placing an order with the Respondent. The Complainant received completely different products from what it ordered. The Complainant has provided scam reports to document the Respondent’s bad faith and pattern of conduct. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark 8848 ALTITUDE.
The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name is confusingly similar to the dominant part of the Complainant’s trademark. The addition of the Swedish word “rea” (“discount” in English) does not avoid a finding of confusing similarity. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the gTLD “.com”.
The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing its trademark or otherwise make use of its mark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. The Respondent uses the Domain Name to resolve to a website that purports to sell the Complainant’s products. As documented by the Complainant, the Respondent’s webpage seems to be part of a scam to obtain unmerited payments, personal information and credit card numbers. This is not a bona fide offering nor a legitimate noncommercial or fair use, within the meaning of the Policy.
The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
It is obvious that the Respondent must have been aware of the Complainant’s trademark and its business when the Respondent registered the Domain Name.
The Panel finds the Respondent registered and is using the Domain Name with the intention of confusing Internet users into believing that the Domain Name is associated with the Complainant. The use of the Domain Name to sell false 8848 Altitude products and run a scam to obtain unmerited payments, personal information and credit card numbers, puts beyond doubt that the Domain Name has been registered to take unfair advantage of the goodwill associated with the Complainant’s trademark. It also documents that the Respondent attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion. The bad faith is supported by the fact that the Respondent has not responded to the Complainant’s contentions.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of the 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 Domain Name be transferred to the Complainant.
Mathias Lilleengen
Sole Panelist
Date: November 17, 2017
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