Complainant is GEA Group Aktiengesellschaft of Düsseldorf, Germany, represented by Bardehle Pagenberg Partnerschaft mbB, Germany.
Respondent is Andrew Gonzalez, Ram International, Inc. of Odem, Texas, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name (the “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 February 18, 2019. On February 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 18, 2019, 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 February 22, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 14, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 15, 2019.
The Center appointed Marina Perraki as the sole panelist in this matter on March 22, 2019. 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
According to the Complaint, Complainant is one of the world’s biggest suppliers for the food processing industry, active also in other areas. Complainant has been incorporated under the GEA trade name since as early as 1906. Complainant disposes of a worldwide sales and service network with subsidiaries and/or contractual partners and distributors all over the world, including subsidiaries and distributors in the United States. In 2015, Complainant generated consolidated revenues in excess of EUR 4.6 billion, more than 70 percent of which came from the food sector.
Complainant is the owner of trademark registrations for the GEA mark, including a) the German trademark registration No. 30573080, GEA GROUP (word), filed on October 31, 2005, registered on April 25, 2006, for goods and services in international classes 1, 4, 7, 9, 10, 11, 35, 36, 37, 40, 41 and 42, b) the international registration No. 1001917, GEA (figurative), registered on October 23, 2008, for goods and services in international classes 1, 4, 7, 9, 11, 35, 36, 37, 40, 41, 42 and 45, c) United States trademark registration No. 3882620, GEA (figurative), registered on November 30, 2010, for goods and services in international classes 1, 7, 9, 11, 35, 37, 40, 41 and 42, and d) the United States trademark registration No. 5582643, GEA (word), registered on October 16, 2018, for goods and services in international classes 1, 7, 9, 11, 35, 36, 37, 40, 41, and 45.
Complainant is also the owner of a number of domain name registrations, including the domain name registered on March 25, 2000.
The Domain Name was registered on December 7, 2018, and directs to a website where, per Complainant, a Mal/HTMLGen-A threat was detected, indicating a website content which is either malicious (a site whose sole purpose is to infect users with malware) or compromised (a legitimate site, but one that has been hacked in order to infect or redirect users).
Furthermore, as per Complaint, Complainant became aware of the Domain Name when the Human Resources department of Complainant in the United States was contacted by various individuals, informing that they had received job offers, presumably from Complainant. One person inter alia reported to have received email communications from an email address that included the Domain Name, appearing to be from a person under the name “[…]” acting as “Head Hiring Management Department” of Complainant, whereto letters were attached signed by that person in the above capacity, “on behalf of” Complainant and displaying the GEA figurative trademark of Complainant prominently. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for the transfer of the Domain Name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant has demonstrated rights through registration and use of the GEA and GEA GROUP marks.
The Panel finds that the Domain Name is confusingly similar with the GEA and GEA GROUP trademarks of Complainant.
The Domain Name incorporates the said trademarks of Complainant in their entirety. This is sufficient to establish confusing similarity (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525).
The article “the” which is added in the Domain Name does not avoid a finding of confusing similarity. Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. (N. M. Rothschild & Sons Limited v. Super Privacy Services LTD c/o Dynadot / RothschildFintrade Co. Ltd,WIPO Case No. D2018-2036; KPMG International Cooperative v. Whois Privacy Services, Provided by Domain Protect LLC /Dmitriy Selivanov,WIPO Case No. D2017-0988; Philip Morris Products S.A. v. Yang Jiang Nan,WIPO Case No. D2018-1869; Accenture Global Services Limited v. Jean Jacque / Luck Loic,WIPO Case No. D2016-1315; Wragge Lawrence Graham & Co LLP v. Registration Private, Domains by Proxy LLC / Ian Piggin,WIPO Case No. D2015-0135).
The Top-Level Domain (“TLD”) “.com” may also be disregarded, as TLDs typically do not form part of the comparison on the grounds that they are generally required for technical reasons (Trodat GmbH v. Fuat Akkus, Yonkinya,WIPO Case No. D2016-0226; Rexel Developpements SAS v. Zhan Yequn,WIPO Case No. D2017-0275).
Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complainant, Respondent was not authorized to register the Domain Name.
Prior to the notice of the dispute, Respondent did not demonstrate any use of the Domain Name or a trademark corresponding to the Domain Name in connection with a bona fide offering of goods or services.
On the contrary, as per Complainant, the Domain Name directs to a website where a Mal/HTMLGen-A threat was detected. Furthermore, the Domain Name was used for purposes other than hosting a website, namely for constructing an email composition containing the Domain Name, used for deceiving purposes to create an email address and send email communications from a person pretending to be a representative of Complainant, offering fake job offers.
The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name (Accor SA v. Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyP / Yogesh Bhardwaj,WIPO Case No. D2017-1225).
Complainant has established Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in bad faith:
(i) circumstances indicating that you [Respondent] have registered or you [Respondent] have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the domain name; or
(ii) that you [Respondent] have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you [Respondent] have engaged in a pattern of such conduct; or
(iii) that you [Respondent] have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your [Respondent’s] website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of you [Respondent’s] website or location or of a product or service on you [Respondent’s] website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. As per Complaint, Complainant’s GEA trademark has been long and widely used for food processing (GEA Group Aktiengesellschaft v. Steve Bernard, WIPO Case No. D2014-1241; GEA Group Aktiengesellschaft v. Erik Kratz/Domains By Proxy, LLC, WIPO Case No. D2014-0444; GEA Group Aktiengesellschaft v. J. D. WIPO Case No. D2014-0357). Because the GEA mark had been widely used and registered at the time of the Domain Name registration by Complainant, the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering this Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc.,WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226). Such knowledge follows also from the fact that Respondent used the Domain Name to create an email address and send emails pretending to be from a representative of Complainant.
Furthermore, Respondent could have searched the United States trademark registry and would have found Complainant’s prior registrations in respect of GEA and GEA GROUP (Citrix Online LLC v. Ramalinga Reddy Sanikommu Venkata,WIPO Case No. D2012-1338).
As regards bad faith use, Complainant demonstrated that the Domain Name was used to create an email address and send emails, pretending to be from a representative of Complainant, offering fake job offers. One of the recipients received a job offer from a person acting under the name “[…]”, using an email address incorporating the Domain Name, namely “[...]@“. In this email a “GEA Group letter of Employment” and a “GEA Group Letter of Obligations” were attached. In these letters, […] appeared to act as a representative of Complainant, in the capacity of “Head Hiring Management Department” and the figurative GEA marks were prominently displayed. Furthermore, the Domain Name, per Complainant, directs to a website where a Mal/HTMLGen-A threat was detected, indicating a website content which is either malicious (a site whose sole purpose is to infect users with malware) or compromised (a legitimate site, but one that has been hacked in order to infect or redirect users).
Use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending deceptive emails, phishing, identity theft, or malware distribution (WIPO Overview 3.0, section 3.4). This purpose can support a finding of bad faith registration and use (Arla Foods Amba v. Michael Guthrie, M. Guthrie Building Solutions,WIPO Case No. D2016-2213; Yahoo! Inc. v. Aman Anand, Ravi Singh, Sunil Singh, Whois Privacy Corp., Domains By Proxy, LLC,WIPO Case No. D2016-0461; Minerva S.A. v. Whoisguard Protected, Whoisguard, Inc., / GREYHAT SERVICES,WIPO Case No. D2016-0385; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; L’Oréal v. Cimpress Schweiz GmbH,WIPOCaseNo. DCO2017-0021;Accenture Global Services Limited v. Jean Jacque / Luck Loic, supra; Wragge Lawrence Graham & Co LLP v. Registration Private, Domains by Proxy LLC / Ian Piggin, supra; Syngenta Participations AG v. Simon Laidler / Who Is Agent, WhoIs Privacy Protection Service, Inc.,WIPO Case No.D2014-1702; Monarch Airlines Limited v. Richard Nani,WIPO Case No. D2012-2484; La Française des Jeux v. MichaelE Wilkins, WIPO Case No. D2009-0898; and WIPO Overview 3.0, sections 3.3 and 3.4).
Under these circumstances and on this record, the Panel finds that Respondent registered and is using the Domain Name in bad faith.
Complainant has established Policy 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 Domain Name be transferred to Complainant.
Marina Perraki
Sole Panelist
Date: April 5, 2019
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