The Complainant is OSRAM GmbH of Munich, Germany, represented by Hofstetter, Schurack & Partner, Germany.
The Respondent is Arthur Zheng, Artur Zheng of Guangzhou, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2018. The Center transmitted its request for registrar verification to the Registrar the same day. The Registrar replied the same day stating that the Domain Name is registered with it, that the Respondent is the current registrant, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies, that the Domain Name will remain locked during this proceeding, that the language of the registration agreement is English, and that the Domain Name was registered on January 20, 2018 and will expire on January 20, 2020. The Registrar also provided the full contact details held on its WhoIs database in respect of the Domain Name.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint and the proceedings commenced on March 8, 2018. In accordance with paragraph 5 of the Rules, the due date for Response was March 28, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 29, 2018.
The Center appointed Jonathan Turner as the sole panelist in this matter on April 11, 2018. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant is the operative company of OSRAM Licht AG group which employs about 26,000 people in over 120 countries and had revenue in 2017 in excess of EUR 4 billion. The business was formed by a merger of the light bulb manufacturing operations of Deutsche Gasluchlicht AG (“DGA”), AEG and Siemens & Halske between 1918 and 1920.
Until recently the Complainant was one of the three largest lighting manufacturing companies in the world. In 2016 the Complainant’s business in LED lamps, classic lamps and ballasts was hived off to a separate company and the Complainant now concentrates on technology and innovation-led applications including opto semiconductors, automotive and specialty lighting, luminaries, and solutions.
The OSRAM mark had been registered by DGA for “electrical incandescent and arc lamps” in 1906 and has been used continuously by the business since the merger following the First World War. The Complainant now owns numerous registrations of this mark, including over 100 international registrations (e.g. No 567593 registered on February 15, 1991), covering numerous countries around the world.
The Domain Name was registered on January 20, 2018, and it has been used by the Respondent to locate a web page advertising synthetic vacuum cleaner bags. 5. Parties’ Contentions A. Complainant
The Complainant states that it has longstanding rights in the mark OSRAM and that the Domain Name is confusingly similar to this mark. The Complainant points out that the Domain Name consists of the mark followed by the word “motor”, which it says has a descriptive connotation in relation to the Complainant’s automotive lighting business, and by the generic top level domain suffix.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant states that to the best of its knowledge the Respondent does not own any OSRAM trademarks, that the Respondent is not a licensee, authorized dealer or distributor of the Complainant nor commonly known by the Domain Name, and that the Respondent is not making legitimate noncommercial or fair use of the Domain Name. The Complainant adds that there is no explanation on the Respondent’s website that it is not connected with the Complainant.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. According to the Complainant the Respondent is obviously trying to exploit the Complainant’s famous mark to attract potential clients to his website for commercial gain by creating a likelihood of confusion with this mark as to the source, sponsorship, affiliation or endorsement of the website or products promoted on it.
The Complainant seeks a decision that the Domain Name be transferred to it. B. Respondent
As stated above, the Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is convenient to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a substantive response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the mark OSRAM. The Panel further finds that the Domain Name is confusingly similar to this mark. The mark is highly distinctive and included in its entirety in the Domain Name together with the word “motor”, which has a descriptive connotation, and the generic top level domain suffix. Many Internet users would assume that the Domain Name is connected with the Complainant. The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel does not regard the Respondent’s use of the Domain Name as a bona fide offering of goods or services. On the contrary, the Panel considers that it seeks to take unfair advantage of the reputation of the Complainant’s OSRAM mark to attract Internet users to the Respondent’s website for commercial gain by creating a likelihood of confusion with that mark as to the source, sponsorship, affiliation or endorsement of the website or of products promoted on it. The Complainant’s submission in this regard is plausible and is accepted by the Panel in the absence of any plausible explanation by the Respondent to the contrary.
It is evident that the Respondent is not commonly known by the Domain Name. Nor is the Respondent making legitimate noncommercial or fair use of the Domain Name. On the contrary, the Respondent’s use is commercial and unfair, as stated above.
Therefore none of the circumstances mentioned in paragraph 4(c) of the UDRP as demonstrating rights or legitimate interests in a domain name is present. Nor is there any other basis disclosed by the evidence on which the Respondent could claim any rights or legitimate interests in respect of the Domain Name. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
As stated above, the Panel finds on the Complainant’s undisputed evidence that the Respondent has used the Domain Name intentionally to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website or of products promoted on it.
In accordance with paragraph 4(b)(iv) of the UDRP, this constitutes evidence of registration and use of the Domain Name in bad faith. There is no evidence displacing this presumption. The Panel therefore concludes that the Domain Name was registered and is being used in bad faith.
All three substantive requirements of the UDRP are satisfied and it is appropriate to direct that the Domain Name be transferred to the Complainant. 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.
Jonathan Turner
Sole Panelist
Date: April 24, 2018
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