The Complainant is Splunk Inc. of San Francisco, California, United States of America (“United States”), represented by Chestek Legal, United States.
The Respondent is Splunk Academy of Bangalore, India. 2. The Domain Name and Registrar
The disputed domain name is registered with BigRock Solutions Pvt Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2018. On July 31, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 1, 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.
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 the Respondent of the Complaint, and the proceedings commenced on August 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 28, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 29, 2018.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on September 13, 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 in the software business. It is the owner, amongst others, of the United States trademark registration No. 3269249 for SPLUNK, registered on July 24, 2007 (Annex 5 to the Complaint).
The disputed domain name was registered on May 7, 2018. Currently no webpage resolves from the disputed domain name but it has been used in connection with a website which reproduced the Complainant’s logo offering learning solutions on the Complainant’s software (Annex 7 to the Complaint). 5. Parties’ Contentions A. Complainant
According to the Complainant, the disputed domain name reproduces its fanciful, registered trademark combined with the generic word “academy” which describes the same educational services the Complainant offers, thus increasing the similarity between the Complainant’s trademark and the disputed domain name.
As to the absence of rights or legitimate interests, the Complainant argues that:
(i) by using the Complainant’s trademark as its own, the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, given that the Complainant has not authorized the Respondent to use the Complainant’s trademark or to offer the Complainant’s products or services;
(ii) the Respondent has not been commonly known by the disputed domain name, especially considering that the Complainant invented the SPLUNK trademark, which has no meaning in any language; and
(iii) the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, given that the disputed domain name is being used to misleadingly divert consumers away from the Complainant’s authentic services by claiming to be the Complainant when it is not.
In what relates to bad faith in registration and use of the disputed domain name, the Complainant asserts that the Respondent’s knowledge of the Complainant’s trademark is evident given the reproduction of its logotype and clear intention to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement with the disputed domain name.
Furthermore, the Complainant contends that the disclaimer made in the website does not alter the overall infringing nature thereof and rather than curing the Respondent’s bad faith, confirms it, as in Costco Wholesale Corporation, Costco Wholesale Membership, Inc. v. Geraldo Suarez, Medicina Mexico, S.A. De C.V.,WIPO Case No. D2013-1811. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name 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.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the disputed domain name transferred to it, according to paragraph 4(a) of the Policy. A. Identical or Confusingly Similar
The Complainant has established its rights in the SPLUNK trademark.
The disputed domain name fully incorporates the Complainant’s trademark. The addition of the suffix “academy” does not prevent a finding of confusing similarity. Moreover, in this Panel’s view such addition can easily be associated with the Complainant and its training, certification and educational services, thus not sufficient to avoid a risk of undue association by the Complainant’s customers or Internet users in general.
For the reasons above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that indicate the Respondent’s rights or legitimate interests in the disputed domain name. These circumstances are:
(i) before any notice of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights and/or legitimate interests in the disputed domain name. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules. Nevertheless, the burden of proof is still on the Complainant to make a prima facie case against the Respondent.
In that sense, the absence of any indication that the Respondent has any registered trademarks or trade names corresponding to the disputed domain name as well as the Complainant’s statement that no authorization or license was granted for the use of the SPLUNK trademark in the disputed domain name corroborate with the indication of a lack of rights or legitimate interests in the disputed domain name.
Furthermore, the website that resolved from the disputed domain name clearly reproduced the Complainant’s logo and typical colors of the Complainant’s official website, offering learning solutions on the Complainant’s software, what leads this Panel to the conclusion that the Respondent was seeking to create a false impression of association with the Complainant, which does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Under this Panel’s view, the disclaimer made at the bottom of the webpage that resolved from the disputed domain name is insufficient to override such likelihood of confusion given the overall appearance of the website, as discussed below.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith
The Policy indicates in paragraph 4(b)(iv) of the Policy that bad faith registration and use can be found in respect of the disputed domain name, where a respondent has intentionally attempted to attract, for commercial gain, Internet users to the website or other online location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location.
In this case, both the registration and use of the disputed domain name in bad faith can be found in view of the reproduction of the Complainant’s trademark logotype in connection with the Complainant’s products and services on the website that resolved from the disputed domain name and the Respondent’s attempt to create a false impression of impersonation, endorsement or association with the Complainant.
The Panel comes to this conclusion in view of the overall impression of the webpage in which all construction and communication lead Internet users into believing that such webpage was developed by the Complainant or endorsed by it.
The small disclaimer at the bottom of said webpage does not comply with the standard set by past UDRP panels and summarized in section 3.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) of “a clear and sufficiently prominent disclaimer” showing that the Respondent undertook “reasonable steps to avoid unfairly passing itself off as related to the Complainant”.
Thus the Respondent’s use of the disputed domain name not only clearly indicates full knowledge of the Complainant’s trademark but also an attempt to misleadingly divert consumers for its own commercial gain.
For the reasons above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use of the disputed domain name pursuant to paragraph 4(b)(iv) 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.
Wilson Pinheiro Jabur
Sole Panelist
Date: September 20, 2018
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