The Complainant is SAP SE of Walldorf, Germany, represented by K&G Law LLC, United States of America (“United States”).
The Respondent is Stealth Startup of Los Angeles, California, United States. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with pair Networks, Inc. d/b/a pair Domains (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2019. On March 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 19, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 19, 2019, 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 March 19, 2019.
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 March 20, 2019. In accordance with the Rules, paragraph 5, the due date for the Response was April 9, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2019.
The Center appointed Nicholas Smith as the sole panelist in this matter on April 18, 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
The Complainant is a German company, founded in 1972, that provides enterprise software applications, analytics, mobile solutions and related services. The Complainant employs over 96,000 people worldwide, serving over 425,000 customers in 180 countries. Incidental to the Complainant’s primary business activities, the Complainant maintains a site for former employees (“alumni”) at the website “ (“Alumni Site”). Alumni of the Complainant are encouraged to provide their contact information to the Alumni Site and use it to stay in touch with the Complainant and other former employees.
The Complainant owns registered trade marks in various jurisdictions for the word mark SAP (the “SAP Mark”) including United States registration number 25387716, registered from February 19, 2002, for goods and services in classes 9, 41, and 42.
The Domain Name was registered on November 20, 2018. At the date of notification, the Domain Name resolved to a website (“Respondent’s Website”) that purports to be an official website for former employees of the Complainant. The Respondent’s Website reproduces the SAP Mark and much of the design and wording of the Alumni Site. 5. Parties’ Contentions A. Complainant
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s SAP Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the SAP Mark having registered the SAP Mark in various jurisdictions including the United States and European Union. The Domain Name incorporates the SAP Mark in its entirety along with the word “alums”.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Complainant has not granted any license or authorization for the Respondent to use the SAP Mark. The Respondent does not use the Domain Name for a bona fide purpose or legitimate noncommercial purpose. Rather the Domain Name is used for a website that reproduces the SAP Mark, SAP Logo, and various material from the Complainant that has not been authorized by SAP.
The Domain Name was registered and is being used in bad faith. The Domain Name is being to impersonate the Complainant’s alumni site, with the only possible reason behind this being to attract SAP alumni and capture their data. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
To prove this element, the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the SAP Mark, having registrations for the SAP Mark as a trade mark in the United States.
The Domain Name incorporates the SAP Mark in it is entirety with the addition of the term “alums”. The addition of such a term to a complainant’s mark does not prevent a finding of confusing similarity, see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and Wal-Mart Stores, Inc. v. Henry Chan,WIPO Case No. D2004-0056.
The Complainant’s SAP Mark is recognizable within the Domain Name. The Panel finds that the Domain Name is confusingly similar to the Complainant’s SAP Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you 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 (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(ii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.” (Policy, paragraph 4(c)).
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the SAP Mark or a mark similar to the SAP Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. Rather it appears from the evidence submitted by the Complainant that the Respondent is using the Domain Name to create a website impersonating the Complainant’s official alumni website, including by reproducing material from the Alumni Site. Such conduct does not amount to a bona fide offering of goods or services or legitimate noncommercial or fair use of the Domain Name.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the prima facie case that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name to the Complainant who is the owners of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) The Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. (Policy, paragraph 4(b)).
The Panel finds that the Respondent was aware of the Complainant at the time the Domain Name was registered. The Domain Name has been used for a website purporting to be an official alumni website of the Complainant. The Respondent does not provide, nor is it apparent to the Panel, any reason why the Domain Name was registered other than by reference to the Complainant. The registration of the Domain Name in awareness of the Complainant and its rights in the SAP Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent is using the Domain Name to impersonate the Complainant’s Alumni Site. In the absence of any evidence in the alternative, the most likely purpose behind such conduct would be to collect data from or market to visitors to the website who provide personal information on the misapprehension that the Respondent’s Website is the official alumni website of the Complainant. In such circumstances the Panel finds that the Respondent is using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the SAP Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Website.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under 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 Domain Name be transferred to the Complainant.
Nicholas Smith
Sole Panelist
Date: April 30, 2019
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