The Complainant is DPDgroup International Service GmbH & Co. KG, Germany, represented by Fidal., France.
The Respondent is Domain Administrator Organisation See PrivacyG, United States of America / Dennis Cabrera, Cameroon. 2. The Domain Name and Registrar
The disputed domain name (the “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 July 4, 2019. On July 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 5, 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 July 9, 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 amendment to the Complaint on July 10, 2019.
The Center verified that the Complaint together with the amendment to 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 July 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 1, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 6, 2019.
The Center appointed Ellen B Shankman as the sole panelist in this matter on August 13, 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 date of the Domain Name registration was confirmed by the Registrar to be April 12, 2019.
The trademarks DPD and the DPD cubed logo serve as house-marks of the Complainant and are protected as registered trademarks in multiple jurisdictions worldwide.
The Panel confirmed that the Complainant has trademark registrations for the mark DPD including, inter alia, International Registration No. 761146 (registered on May 26, 2001) for its mark that predates the date of the Domain Name registrations for courier related services. The Panel also conducted an independent search to determine that the Domain Name resolves to an active webpage that promotes delivery services and utilizes the Complainant’s trademarks and logos. 5. Parties’ Contentions A. Complainant
To summarize the Complaint, the Complainant is specialized in the field of parcel and postal services and is No. 2 in the express parcel market in Europe. The Complaint alleges that the Complainant is the owner of multiple registrations for the trademark DPD house logo, in respect of courier delivery goods and services. The Domain Name is confusingly similar to the trademark owned by the Complainant. Therefore, the Domain Name could be considered virtually identical and/or confusingly similar to the Complainant’s trademark. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Domain Name was registered and is being used in bad faith. That continued use of the Domain Name would lead to a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent by the Complainant, especially for competing goods and services. Thus, the Respondent’s registration and use of the Domain Name constitutes bad faith registration and use under the Policy, and the Complainant requests transfer of the Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Preliminary matters
In issuing the decision in this case, the Panel wishes to express that even where a Respondent has not replied to the Complaint, it is imperative on the Complainant to provide information that would be helpful to a Panel, such as background information about the Complainant and any support to claims to fame. Although the UDRP is designed to be an expedited procedure, this Complaint was sorely lacking, relying instead on the Appendices and the conclusions there drawn by the Panel. Further, even an impressively long list of trademark and domain name registrations should be accompanied by actual evidence of the Complainant’s rights in its marks and its use. 6.2 Substantive issues
The burden for the Complainant under paragraph 4(a) of the Policy is to prove:
(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered trademark rights for DPD. The Panel finds that the Domain Name is confusingly similar to the Complainant’s trademark. Further, the Panel finds that the addition of the generic and misspelled “group” – i.e. “grooup” – to the Domain Name does not change the overall impression of the designation as being connected to the trademark of the Complainant. It does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s trademark. See Pfizer Inc. v. Asia Ventures, Inc.,WIPO Case No. D2005-0256.
Accordingly, the Panel finds that the first requirement that the Domain Name is identical or confusingly similar to the Complainant’s registered trademark, under paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often-impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name and that it is not related to or affiliated in any way with the Complainant, nor has the Complainant authorized the Respondent to use its trademarks.
Based on the available record, the Panel finds that the Complainant has established a prima facie case, which was not refuted, and that the Respondent lacks rights or legitimate interests in the Domain Name.
Therefore, the Complainant has satisfied the second requirement that the Respondent has no rights or legitimate interests in the Domain Name, under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Given the evidence of the blatant abusive use by the Respondent of the Complainant’s trademarks, the Panel agrees with the Complainant’s claims that the Respondent has registered the Domain Name with full knowledge of the Complainant’s trademark DPD and uses it for the purpose of misleading and diverting Internet traffic and identity theft.
Thus, the Panel finds that the Respondent’s use of the Domain Name creates confusion as to the source of the Domain Name in an attempt to trade on the goodwill associated with the Complainant’s trademark. A respondent’s use of a complainant’s mark — for said respondent’s commercial benefit — to attract Internet users otherwise seeking said complainant evinces a finding of bad faith per Policy paragraph 4(b)(iv) and is consistent in this case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), at section 3.1.4 which states:
“Panels have moreover found the following types of evidence to support a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark: (i) actual confusion, (ii) seeking to cause confusion (including by technical means beyond the domain name itself) for the respondent’s commercial benefit, even if unsuccessful, (iii) the lack of a respondent’s own rights to or legitimate interests in a domain name, (iv) redirecting the domain name to a different respondent-owned website, even where such website contains a disclaimer, (v) redirecting the domain name to the complainant’s (or a competitor’s) website, and (vi) absence of any conceivable good faith use.”
Given the evidence of the attempt of copying the Complainant’s website, and noting that the Complainant’s trademarks found on the Respondent’s website, the Panel finds that the third requirement that the Respondent has registered and is using the Domain Name in bad faith, under paragraph 4(a)(iii) of the Policy has been satisfied. 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.
Ellen B Shankman
Sole Panelist
Date: August 15, 2019
Full & Egal Universal Law Academy