The Complainant is Tokmanni Oy of Mäntsälä, Finland, represented by Fondia Law, Finland.
The Respondent is Kai Haavisto, Rolloglobal Ltd Suomen sivuliike of Lohja, Finland, and Rolloglobal Ltd of Kowloon, Hong Kong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with OVH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 5, 2018. On July 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 5, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant, providing the contact details and informing the Center that the language of the registration agreement used for the disputed domain name was Finnish. On July 16, 2018, the Center sent an email communication to the Parties regarding the language of proceedings. The Complainant responded to this communication on July 16, 2018, requesting that the language of the proceedings should be English. The Respondent did not respond. The Complainant submitted an amended Complaint to the Center on July 16, 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 July 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 16, 2018.
The Center appointed George R. F. Souter as the sole panelist in this matter on August 31, 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.
Language of Proceedings
The Complainant has requested that the language of the proceedings should be English, and the Respondent has facilitated the use of English in pre-complaint correspondence. The Panel decides that the language of the proceedings should be English. 4. Factual Background
The Complainant is a Finnish discount store retailer, with over 175 shops across Finland. The Complainant has supplied the Panel with details of its Finnish trademark registration number 237720 of its TOKMANNI trademark, dating from 2006.
The disputed domain name was registered on July 29, 2017.
The disputed domain name is being used in connection with a website offering goods similar to those traded in by the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain is confusingly similar to its TOKMANNI trademark, differing from its trademark only by having a single “n” in the domain name.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that the Respondent does not identify itself in business under the disputed domain name, and the Respondent is not making any legitimate use of the disputed domain name.
The Complainant alleges that the disputed domain was registered in bad faith, and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(i) the disputed domain name 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
It is well-established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) indicator is irrelevant when comparing a trademark with a disputed domain name.
The disputed domain name differs from the Complainant’s TOKMANNI trademark only in having a single “n”. Although, in the Finnish language, a double “n” is pronounced differently to a single “n”, this difference is not, in the Panel’s opinion, sufficient to outweigh the general overall similarity between the Complainant’s trademark and the disputed domain name.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. In the circumstance of the present case, in which the Panel believes that the Respondent has clearly had the Complainant’s trademark in mind when registering the disputed domain name, the Panel regards it as appropriate to find that the disputed domain name was registered in bad faith, and so finds.
It is well-established in prior decisions under the Policy that the use of a disputed domain in connection with a website offering goods similar to those traded in by the Complainant constitutes use of the disputed domain name in bad faith. This is clearly the case in the circumstances of the present case, and the Panel accordingly finds that the disputed domain name is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the dual requirements of 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.
George R. F. Souter
Sole Panelist
Date: September 13, 2018
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