Complainant is Puma SE of Herzogenaurach, Germany, represented by Göhmann Rechtsanwälte Abogados Advokat Steuerberater Partnerschaft, Germany.
Respondent is Cynthia Huge of Windach, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with Hosting Concepts B.V. d/b/a Openprovider (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 28, 2018. On June 28, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 2, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on July 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 26, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 30, 2018.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on August 1, 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
Complainant is a company organized under the laws of Germany that belongs to the world’s leading producers of sports articles.
Complainant has provided evidence that it is the registered owner of numerous trademarks worldwide relating to the term “Puma”, including, inter alia, the following with protection for Germany:
- Word mark PUMA, World Intellectual Property Organization (WIPO), Registration No. 485391, Registration Date: March 19, 1984, Status: Active;
- Word-/device mark PUMA, Deutsches Patent- und Markenamt (DPMA), Registration No. 2011116, Registration Date: March 12, 1992, Status: Active.
Respondent, according to the WhoIs information for the disputed domain name, is a resident of Germany and registered the disputed domain name on November 9, 2017. As of the time of the rendering of this decision, the disputed domain name redirects to a typical parking page noting that “this domain is marked inactive”.
Complainant requests that the disputed domain name be transferred to Complainant. 5. Parties’ Contentions A. Complainant
Complainant submits that the disputed domain name is identical or confusingly similar to Complainant’s PUMA trademark as the first part of the designation “pumaturkiye” is identical thereto, while the second part - being a geographical term - is of no distinctive importance. Moreover, Complainant asserts that Respondent has not rights or legitimate interests in respect of the disputed domain name since at some point before the filing of this Complaint, Respondent offered fake goods for sale on a website under the disputed domain name, which neither qualifies as bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor was it making a legitimate noncommercial or fair use thereof. Finally, Complainant argues that Respondent registered and is using the disputed domain name in bad faith since selling fake goods thereunder indicates that Respondent intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s PUMA trademark. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That 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.
Respondent’s default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute solely based upon the Complaint. Further, the Panel may draw such inferences as are appropriate from Respondent’s failure to submit a Response. A. Identical or Confusingly Similar
The Panel concludes that the disputed domain name is confusingly similar to the PUMA trademark in which Complainant has rights.
The disputed domain name incorporates the PUMA trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8), that the addition of a geographic term to a trademark in a domain name is normally insufficient, in and of itself, to avoid the finding of confusing similarity under the first element of the UDRP. Accordingly, the addition of the geographic term “turkiye” (English: “Turkey”) does not dispel the confusing similarity arising from the incorporation of Complainant’s PUMA trademark in the disputed domain name.
Therefore, Complainant has established the first element under the Policy set forth by paragraph 4(a)(i). B. Rights or Legitimate Interests
The Panel is further convinced on the basis of Complainant’s undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain.
Complainant’s limited assertions may still be interpreted in a way that Respondent has not been authorized to use Complainant’s PUMA trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the term “Puma”. To the contrary, Complainant contends undisputedly that, at some point before the filing of this Complaint, the disputed domain name resolved to a website where Respondent offered fake goods for online sale. Such making use of the disputed domain name obviously neither qualifies as a bona fide offering of goods or services nor as using the disputed domain name for a legitimate, noncommercial or fair purpose.
Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. Having done so, the burden of production shifts to Respondent to come forward with appropriate evidence demonstrating rights or legitimate interests (see WIPO Overview 3.0, section 2.1). Given that Respondent has defaulted, it has not met that burden.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.
Resolving the disputed domain name, which is confusingly similar to Complainant’s PUMA trademark, to a website which offers fake goods for online sale is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to its own website by creating a likelihood of confusing with Complainant’s PUMA trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
In this context, the Panel has also noted that according to email correspondence between the Center and the postal courier DHL and the courier delivery records, the written notice on the notification of the Complaint dated July 6, 2018 could not be delivered because the “[r]ecipient refused delivery”. This fact at least throws a light on Respondent’s behavior which supports the Panel’s bad faith finding.
Therefore, the Panel concludes that Complainant has also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii). 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 Complainant.
Stephanie G. Hartung
Sole Panelist
Date: August 13, 2018
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