The Complainant is Chapps NV, Belgium, represented by Gevers Legal NV, Belgium.
The Respondent is Home of Domains, Domain Admin / This Domain is For Sale, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name (“Disputed Domain Name”) is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2019. On May 23, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 23, 2019, 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 May 29, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 21, 2019.
The Center appointed Nicholas Weston as the sole panelist in this matter on July 9, 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 private company based in Belgium that operates a business that supplies software applications for the purpose of real estate inspection to customers internationally, including one called “Rental Inspector”. The Complainant holds registrations for the trademark CHAPPS, and variations of it, in various jurisdictions, including European Union trade mark registration No. 011416179, registered on May 9, 2013 which it uses to designate a range of services in classes 9, 35 and 42. One registration, European Union trade mark registration No. 017910480 for the mark CHAPPS RENTAL INSPECTOR was filed on May 31, 2018 and registered on September 13, 2018, in classes 9, 35 and 42 for goods and services including “software”.
The Respondent registered the Disputed Domain Name on May 31, 2018. The Disputed Domain Name resolves to a parking page where, prior to implementation of the domain name lock, it was offered for sale for the sum of USD 950. 5. Parties’ Contentions A. Complainant
The Complainant cites several trademark registrations, including European Union trademark registration No. 011416179 for the mark CHAPPS registered on May 9, 2013, European Union trade mark No. 017910480 for the mark CHAPPS RENTAL INSPECTOR and International Trademark No. 1245498 registered, inter alia, in the United States for the mark CHAPPS as evidence of ownership.
The Complainant submits that its rights in the CHAPPS trademark predate the Respondent’s registration of the Disputed Domain Name. It submits that the Disputed Domain Name is confusingly similar to its trademark CHAPPS, and is identical to its trademark CHAPPS RENTAL INSPECTOR, because the Disputed Domain Name incorporates in its entirety the CHAPPS RENTAL INSPECTOR trademark and that the similarity to the registered trademarks for the word CHAPPS is not removed by the additional words “rental inspector” or the addition of the generic Top-Level Domain (“gTLD”) “.com”.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because the associated website is currently inactive and “a generic parking page”, and contends that the Respondent, having offered the Disputed Domain name for sale for USD 950 and no other connection by way of commercial or other interests which could relate its business with the Complainant’s business, has no rights or legitimate interests in the Disputed Domain Name.
Finally, the Complainant alleges that the registration and use of the Disputed Domain Name was, and currently is, in bad faith, contrary to the Policy and Rules, having regard to the prior use of the Complainant’s trademarks. The Complainant submits that the Respondent’s registration of the Disputed Domain Name on the same date the Complainant filed a trademark application for its CHAPPS RENTAL INSPECTOR trademark with the European Union Intellectual Property Office (“EUIPO”) strongly suggests that the Respondent knew of the Complainant and only registered the Disputed Domain Name in response to the Complainant’s filing of such trademark application. The Complainant submits that for the Respondent to have proceeded with registration knowing of the Complainant’s rights demonstrates the Respondent’s opportunistic bad faith, citing Aviva Brands Limited v. Domain Administrator, See PrivacyG / Domain Admin,WIPO Case No. D2018-0632and Giide GmbH & Co. KG v. Shanshan Huang,WIPO Case No. D2017-0562. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant has the burden of proving the following:
(i) that the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the 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. A. Identical or Confusingly Similar
The Complainant has produced evidence to demonstrate that it has registered trademark rights in the mark CHAPPS in jurisdictions including the European Union and the Respondent’s apparent location, the United States. In any event, the requirements of the first element for purposes of the Policy may be satisfied by a trademark registered in any country (see, Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358).
Turning to whether the Disputed Domain Name is identical or confusingly similar to the CHAPPS RENTAL INSPECTOR trademark, the Panel observes that the Disputed Domain Name comprises: (a) an exact reproduction of the Complainant’s trademark CHAPPS RENTAL INSPECTOR; (b) followed by the gTLD “.com”.
It is well-established that the gTLD is a technical part of a domain name and may be disregarded for the purposes of finding confusing similarity between the Disputed Domain Name and the Complainant’s trademark (see, Hoffmann-La Roche Inc. v. Andrew Miller,WIPO Case No. D2008-1345). The relevant comparison to be made is with the second-level portion of the Disputed Domain Name, specifically: “chappsrentalinspector”.
It is also well established that where a domain name wholly incorporates a complainant’s trademark in its entirety, it can be confusingly similar to that trademark (see: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Wal-Mart Stores, Inc. v. WalMart Careers, Inc.,WIPO Case No. D2012-0285; Statoil ASA v. Weiwei Qiu / PrivacyP,WIPO Case No. D2011-1752; Statoil ASA v. Domain Admin / Management SO Hkg,WIPO Case No. D2012-2392). The Disputed Domain Name incorporates the trademark CHAPPS RENTAL INSPECTOR, and the trademark CHAPPS, the latter which is owned and has been commercially used and promoted by the Complainant since at least 2012.
The Panel finds that the Complainant has established paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists the ways that the Respondent may demonstrate rights or a legitimate interests in the Disputed Domain Name. The Policy also places the burden on the Complainant to establish the absence of the Respondent’s rights or legitimate interests in the Disputed Domain Name. Because of the inherent difficulties in proving a negative, the consensus view is that once the Complainant puts forward a prima facie case that the Respondent lacks rights or legitimate interests, the burden of production shifts to the Respondent to rebut that prima facie case (see, World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles,WIPO Case No. D2000-1306; WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1).
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because there is no evidence of the Respondent’s use, or demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods and services.
Section 2.11 of the WIPO Overview 3.0 states that “Panels tend to assess claimed respondent rights or legitimate interests in the present, i.e., with a view to the circumstances prevailing at the time of the filing of the complaint.” This Panel notes that the trademark CHAPPS RENTAL INSPECTOR was applied for on the very same day that the Disputed Domain Name was registered but that the trademark CHAPPS was registered some years earlier in 2013. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because the Complainant has not licensed, permitted or authorized the Respondent to use the Complainant’s trademark.
The Complainant has alleged and the Respondent has failed to deny that the Respondent has no legitimate interests in respect of the Disputed Domain Name (see, Teledesic LLC v. McDougal Design,WIPO Case No. D2000-0620; Alcoholics Anonymous World Services, Inc. v. Lauren Raymond,WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic. A.S.,WIPO Case No. D2000-0011).
This Panel accepts that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Disputed Domain Name and, in the absence of a reply by the Respondent, the Panel finds for the Complainant on paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, 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 you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you 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 have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Panel notes that the Respondent registered the Disputed Domain Name on the day the Complainant made application to register the trademark CHAPPS RENTAL INSPECTOR and that it did so with intent to offer it for sale on the open market. However, the Panel will rely on other evidence if it is to make such a finding.
The Complainant’s case also relies on the provisions of paragraph 4(b)(i) of the Policy, namely that there are circumstances indicating that the Respondent registered the Disputed Domain Name with intent to sell it to the Complainant or a competitor for an amount in excess of its out-of-pocket costs, in this case for USD 950. In order to succeed, the Complainant would be required to show that trademark rights were being specifically targeted or singled out by the Respondent. This Panel infers from the prior registration of the trademark CHAPPS and its offering for sale of a product called CHAPPS RENTAL INSPECTOR that the Respondent must have had the Complainant or a competitor in mind when it registered the Disputed Domain Name.
The Panel has also considered whether it should draw an adverse inference from the Respondent’s use of a privacy shield. In the circumstances it seems reasonable to infer that the main purpose the Respondent has used a privacy service is to cause the Complainant difficulty in identifying other domain names registered by the same registrant (see, Medco Health Solutions, Inc. v. Whois Privacy Protection Service, Inc.,WIPO Case No. D2004-0453; Microsoft Corporation v. Whois Privacy Protection Service / Lee Xongwei,WIPO Case No. D2005-0642; CCM IP S.A. v. Traverito Traverito,WIPO Case No. D2007-0542; Ustream.TV, Inc. v. Vertical Axis, Inc.,WIPO Case No. D2008-0598; Sermo, Inc. v. CatalystMD, LLC,WIPO Case No. D2008-0647).
The Panel notes that communications from the courier service used by the Center to serve the materials in this case on the Respondent sent on May 29, 2019, indicate that the Respondent provided wrong/incomplete contact information when registering the Disputed Domain Name. This Panel therefore infers that the Respondent has used a privacy service in combination with provision of incomplete contact information to conceal the identity of the “true” or “underlying” registrant and accepts this as further evidence of bad faith (see WIPO Overview 3.0, section 3.2).
The Disputed Domain Name offers no plausible dictionary word value or any other possible use which would not necessarily conflict with the Complainant’s rights and the Respondent hid behind a privacy service supplied with wrong, incomplete contact information. This Panel regards such conduct as evidence of bad faith use in the absence of a response.
Accordingly, the Panel finds that the Complainant has satisfied the 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.
Nicholas Weston
Sole Panelist
Date: July 13, 2019
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