The Complainant is Allnet Computersysteme of Germering, Germany, represented by Isarpatent, Germany.
The Respondent is Franck Sander of Paris, France. 2. The Domain Name and Registrar
The disputed domain name is registered with Namebay (the "Registrar"). 3. Procedural History
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 9, 2018. On March 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 12, 2018, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 27, 2018.
Pursuant to the Complaint submitted in English and the registrar verification dated March 12, 2018 stating that French is the language of the registration agreement of the disputed domain name, on March 19, 2018, the Center sent a request in English and French for the Parties to submit their comments on the language of the proceeding. On March 22, 2018, the Complainant submitted its request for English to be the language of the proceeding; whereas the Respondent did not submit any request regarding the language of the proceeding.
The Center verified that the Complaint together with the amended 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 March 29, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 18, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 20, 2018.
The Center appointed Anne-Virginie La Spada as the sole panelist in this matter on April 24, 2018. 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 Allnet Computersysteme is a company based in Germany that is specialized in information and communication technologies. Its complete name is ALLNET GmbH Computersysteme.
The Complainant is the holder of international trademark registrations, European trademarks registrations and German trademark registrations for the mark ALLNET. As an example of the Complainant's trademark registrations, the Complainant is the holder of the European Union ("EU") Trademark registration ALLNET no. 009384462, registered on March 6, 2011 in classes 9, 11, 35 and 42.
The Respondent is an individual with an address in France according to the WhoIs database search submitted by the Complainant and as confirmed by the Registrar.
The disputed domain name was registered on July 19, 2017.
In January 2018, an employee of a company in the United Kingdom of Great Britain and Northern Ireland ("UK"), with which the Complainant had a business relationship, received an email from someone with an email address generated with the disputed domain name, namely "[xxx]@". The name and family name used in the email address "[xxx]@" and the signature at the bottom of the email corresponded to the name and family name of an actual employee of the Complainant, whose email address is "[xxx]@".
The author of the email with the address "[xxx]@", who was pretending to be an employee of the Complainant, placed an order with the company in the UK. Upon receiving the email, the employee of the company in the UK suspected however that someone was trying to use the Complainant's identity to place orders and informed the Complainant about his suspicions by email dated January 31, 2018. The Complainant confirmed that it did not place these orders.
In addition, in February 2018, an employee of another company also received an email from the email address "[xxx]@". The author of this email was trying to open a business account with this company pretending to be the Complainant. The Complainant was also informed about this fraudulent email.
The disputed domain name does not currently resolve to an active website. 5. Parties' Contentions A. Complainant
The Complainant's submissions can be summarized as follows:
The disputed domain name is confusingly similar to the trademark ALLNET and identical to the Complainant's full name which is ALLNET GmbH Computersysteme.
The Respondent does not have any rights or legitimate interests in the disputed domain name.
In addition, the Respondent used the disputed domain name to send a fraudulent email to the Complainant's business partners and customers, pretending to be the Complainant.
The above circumstances show that the disputed domain name has been registered and used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings 6.1 Language of the proceeding
Although the language of the registration agreement is French, the Complainant has requested that the proceeding be conducted in English.
According to paragraph 11 (a) of the Policy, "unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding".
UDRP panels may accordingly allow that proceedings be conducted in another another language than the registration agreement, if the circumstances warrant it. This provision must be applied in accordance with paragraphs 10(b) and 10(c) of the Rules, requiring that the parties be treated equally, that each party be given a fair opportunity to present its case and that the proceeding take place with due expedition. Moreover, the language of the proceeding must also ensure the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes (see Banque Pictet & Cie SA v. Hu Deng Xia,WIPO Case No. D2015-0781).
According to the Complainant, the fact that the Respondent sent emails in English to the Complainant's business partners clearly shows that he is able to understand and communicate in English.
In the Panel's opinion, this fact indeed strongly suggests that the Respondent is able to communicate in English. Furthermore, the Respondent had the opportunity to oppose the choice of English as the language of the proceeding but did not do so. In such circumstances, the Panel holds that it would place an unreasonable burden on the Complainant to require that it translate the Complaint into French. The Panel allows therefore the present proceeding to be conducted in English. 6.2 Substantive elements of the Policy
According to paragraph 4(a) of the Policy, a complainant must assert and prove each of the following:
(i) the 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 domain name; and
(iii) the domain name registered by the respondent has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainants owns various international, EU and German trademark registrations for ALLNET.
The disputed domain name reproduces the Complainant's trademark in its entirety and combines this trademark with the descriptive acronym "gmbh", which stands for "Gesellschaft mit beschränkter Haftung", meaning "Limited Liability Company" (Ltd) in German.
The trademark ALLNET is the most distinctive element in the disputed domain name. The Panel is of the opinion that the mere addition of descriptive element such as "gmbh" (Ltd) does not change the overall impression produced by the disputed domain name and is insufficient to avoid confusion with the Complainant's trademark.
The disputed domain name is therefore confusingly similar to the Complainant's trademark according to paragraph 4(a)(i) of the Policy (see Banque Pictet & Cie SA v. Brian Dyson and David Kalan, supra; Lime Wire LLC v. David Da Silva / C,WIPO Case No. D2007-1168).
The Complainant has thus satisfied the condition set forth in paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Based on the information submitted by the Complainant, it appears that the Respondent is not a licensee of the Complainant, nor has the Complainant granted to the Respondent an authorization to use the disputed domain name. Moreover, there is no indication that the disputed domain name corresponds to the Respondent's name.
The Respondent did not file a response to the Complaint. The Panel may draw from the lack of a Response the inferences that it considers appropriate, according to the Rules, paragraph 14(b). It is the Panel's inference that the Respondent's silence corroborates the Complainant's assertion that the Respondent lacks rights or legitimate interests in the disputed domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Complainant has satisfied the condition set out in paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Considering that the disputed domain name combines the Complainant's trademark ALLNET with the acronym "gmbh" which is part of the Complainant's name, and that the disputed domain name was registered well after the Complainant's trademark, the Panel finds it likely that the Respondent knew of the Complainant's trademark when it registered the disputed domain name.
This is even more likely since the Respondent used an email address corresponding to the disputed domain name to contact the Complainant's business partners and customers by email, pretending to be the Complainant. The Respondent even used the name and family name of an actual employee of the Complainant to create the email address and to sign his emails, which is evidence that the Respondent had a good knowledge of the Complainant's activities.
The fact that the disputed domain name does currently not resolve to an active webpage does not prevent a finding of use in bad faith. In fact, passive holding of a domain name can also be considered, under certain circumstances, as use in bad faith (section 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"); Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
In the present case, the fact that the Respondent used an email address corresponding to the disputed domain name in an attempt to mislead the Complainant's business partners is sufficient to consider that the disputed domain name was used in bad faith. UDRP panels have previously found that such fraudulent conduct constitutes bad faith (see SAP SE v. Name Redacted / Domains By Proxy, LLC,WIPO Case No. D2016-0410; Halliburton Energy Services, Inc. v. Whois Privacy Protection Service, Inc. / KEEP MOUTH,WIPO Case No. D2016-0413).
According to the above and with respect to the Respondent's fraudulent behavior, the Panel finds that the disputed domain name was registered and used in bad faith, and that the Complainant has satisfied the condition set out in 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 disputed domain name be transferred to the Complainant.
Anne-Virginie La Spada
Sole Panelist
Date: May 8, 2018
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