The Complainant is Sener, Ingeniería y Sistemas, S.A. of Getxo, Spain, represented by Clarke, Modet y Cía., S.L., Spain.
The Respondent is Cili Sina of Kunming, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2018. On May 31, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 1, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 4, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 6, 2018.
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 June 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2018.
The Center appointed Jonas Gulliksson as the sole panelist in this matter on July 10, 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 is a Spanish private engineering and technology group, present in many countries all over the world.
The Complainant is the proprietor of inter alia the following trademark registrations; European Union Trademark registration No. 004803797 for SENER (figurative) with application date December 23, 2005, registered on January 22, 2007 for services in class 42, European Union Trademark registration No. 000448209 for SENER (word mark) with application date March 3, 1997, registered on September 28, 1998 for goods and services in classes 12, 37, and 42, International Trademark Registration No. 1103705, designating China, Japan and the Republic of Korea, with registration date December 16, 2011, registered for services in class 42.
The disputed domain name was registered on May 10, 2018 and does not resolve to an active website. 5. Parties’ Contentions A. Complainant
The Complainant is active on many markets and has been using its trademarks not only in Spain but also in many other countries since, at least, 1956.
There is identity between the disputed domain name and the Complainant’s trademark SENER. From UDRP case law it follows that where a domain name incorporates the entirety of a trademark, the domain name is normally considered as confusingly similar to the trademark.
The Complainant owns numerous other domain names including the trademark SENER.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not known by the disputed domain name, has not acquired trademark rights in the disputed domain name and, the Respondent has no relation to the Complainant nor has the Complainant given the Respondent permission to use its name or its trademarks.
The Respondent registered the disputed domain name the same day as the extension “.app” was made available.
The Respondent intentionally registered the disputed domain name in bad faith. The Respondent must have known of the Complainant’s trademark SENER and used the mark in the disputed domain name to trade off the goodwill and reputation of the Complainant’s trademark or otherwise create a false association, sponsorship or endorsement with or of the Complainant. The reputation of the trademark and the Complainant’s strong presence on the Internet makes it unlikely that the Respondent did not know about the trademark at the time of registration of the disputed domain name. It is difficult to imagine that the Respondent has chosen to register the disputed domain name in a casual manner without having the trademark of the Complainant in mind. The Respondent has no connection to the Complainant and its registration of the disputed domain name amounts to “opportunistic bad faith”. At the time of writing of the Complaint the disputed domain name did not have any content. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove all three of the following elements:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant is the proprietor of trademark registrations for SENER, both word and figurative marks. The disputed domain name contains the trademark SENER in its entirety together with the Top-Level Domain (“TLD”) “.app”. It is well-established among UDRP panels that the TLD is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The disputed domain name is thus identical to the trademark and the Panel therefore finds that the first requirement of the Policy is fulfilled. B. Rights or Legitimate Interests
In cases when a respondent fails to present a response, the complainant is still required to make a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not proven otherwise. Moreover, the disputed domain name’s composition effectively impersonates or suggests sponsorship or endorsement by the Complainant. See section 2.5.1 of the WIPO Overview 3.0. The Panel therefore finds that the second requirement of the Policy is fulfilled. C. Registered and Used in Bad Faith
The Complainant’s registered trademarks long predate the disputed domain name and it is not probable that the Respondent registered the disputed domain name without knowledge of the Complainant or its trademarks, particularly when considering the worldwide business and the numerous trademark and domain name registrations of the Complainant, including China where the Respondent is domiciled.
The Complainant states that the Respondent has used the mark in the disputed domain name to trade off the goodwill and reputation of the Complainant’s trademark or otherwise create a false association, sponsorship or endorsement with or of the Complainant. The Panel notes that these allegations about the use and/or intended use of the Respondent are not supported by evidence and that the Complainant has not tried to contact the Respondent before filing the Complaint. However, the circumstances as a whole nevertheless support a finding of bad faith. From the Complaint it is clear that the disputed domain name was registered the same day as the extension “.app” was made available, it is also clear that the Complainant is a very well-known multinational company group with numerous trademark and domain name registrations. Further, the Complaint states that there has been no use of the disputed domain name by the Respondent. These circumstances taken together strongly indicate that the Respondent has registered the disputed domain name in order to take advantage somehow of the Complainant’s reputation and/or to disrupt the business of the Complainant. Furthermore, as previously noted the disputed domain name carries a high risk of implied affiliation. In the Panel’s opinion, against the background of these circumstances, a planned good faith use of the disputed domain name is implausible and the absence of any real use is therefore also an indicator of bad faith, and does therefore not prevent a bad faith finding. The Panel consequently finds that the third requirement of the Policy is fulfilled. 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.
Jonas Gulliksson
Sole Panelist
Date: July 24, 2018
Full & Egal Universal Law Academy