The Complainant is Splunk Inc., United States of America (“US”), represented by Chestek Legal, US.
The Respondent is Show Reddy Donthireddy, Show Reddy Donthireddy, India. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with D, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2019. On July 31, 2019, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to the Complainant on August 1, 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 August 2, 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 the 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 7, 2019. In accordance with the Rules, paragraph 5, the due date for the Response was August 27, 2019. The Respondent did not file a formal Response. However, the Center received an e-mail communication from the Respondent on August 17, 2019. On August 28, 2019, the Center informed the Parties that it would proceed to panel appointment.
The Center appointed Jon Lang as the sole panelist in this matter on September 3, 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 US-based data company. It has a number of trademark registrations for “SPLUNK” and “SPLUNK>” (i.e. with the addition of the “greater than” symbol) for instance, US Trademark Registration No: 3269249 (for SPLUNK) with a registration date of July 24, 2007, and EU Trademark Registration No: 011575545 (for SPLUNK>) with a registration date of February 14, 2013. The logo form of the Complainant’s trademark i.e. SPLUNK> is used on the Complainant’s website.
Nothing is known of the Respondent; apart form a very short e-mail to the Complainant’s representative, copied to the Center on August 17, 2019, (to which refence will be made below), it took no part in these UDRP proceedings.
The Domain Name was registered on June 28, 2019. 5. Parties’ Contentions A. Complainant
A brief summary of the Complainant’s contentions are set out below.
The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant’s trademark, SPLUNK (and logo form of its trademark, SPLUNK>), is an invented, fanciful trademark with no meaning in any language. The Complainant’s trademarks are registered in a variety of classes, including computer software and related services, or in other words, technology.
In creating the Domain Name, the Respondent has combined the Complainant’s trademark SPLUNK, a unique letter string not found in any word, with the dictionary words “star” and “tech”, the latter being a shortened form of the word “technology.”
Where a domain name incorporates the entirety of a trademark, it will normally be considered confusingly similar to the mark in question. Furthermore, the use of a generic term in a domain name containing a complainant’s mark, which describes that complainant’s services, serves to increase the similarity between domain name and trademark.
The Complainant submits that the Respondent does not use the Domain Name for any bona fide offering of goods or services. The content of the website to which the Domain Name resolves does not appear to be original, but copied wholesale from various third-party authors’ works.
The Respondent has no relationship with the Complainant and is not authorized by the Complainant to use the Complainant’s trademarks for its website. However, it does so, using the Complainant’s logo form trademark (SPLUNK>) at the bottom of the Respondent’s home page, as well as on most of its other pages.
The Respondent is also using on its website the Complainant’s graphic images, which include the Complainant’s trademark.
The Respondent’s “About” page returns a 404 message. A party carrying on a bona fide business would not fail to provide contact information on the “About” page of its website.
Given that the Respondent is copying material from others for its blog posts, illustrating such material with the Complainant’s marks and graphics without permission, and does not provide any information on its “About” page, it cannot be said that the Respondent is using the Domain Name in connection with any bona fide offering of goods or services.
Moreover, the Respondent (as an individual, business, or other organization) is not commonly known by the Domain Name. The personal name of the Respondent, and the name of the Respondent’s Organization as provided by the Registrar, are both “Show Reddy Donthireddy”.
Finally, the Complainant submits that the Respondent is not 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 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.
The Respondent registered the Domain Name in June 2019, long after the Complainant’s rights accrued in 2007 with U.S. Trademark Reg. No. 3,269,249. The Respondent is deliberately creating a likelihood of confusion by using the Complainant’s trademarks and graphics on the website to which the Domain Name resolves, leading Internet users to believe that the website is some kind of news feed created by the Complainant. B. Respondent
The Respondent did not file a formal Response. However, as mentioned earlier, the Respondent sent a short e-mail to the Complainant’s representative and copied it to the Center on August 17, 2019. The email said:
“Hi,
Here by I submit that sorry for the inconvenience i had given to a third party developer they did this so at present i had removed all your copyright images,
So the dispute of splunk images had been removed from the domain.
So,
With Regards
Donthireddyshowreddy” 6. Discussion and Findings
Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is (i) identical or confusingly similar to a trademark or service mark in which a complainant has rights; and (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 is being used in bad faith. A complainant must prove each of these three elements to succeed. A. Identical or Confusingly Similar
The Complainant clearly has rights in the SPLUNK (and SPLUNK>) mark.
The Domain Name includes the Complainant’s SPLUNK mark. However, it does not contain only that mark and thus it is not identical to the Complainant’s mark. The issue of confusing similarity must therefore be considered. Under the UDRP, the test for confusing similarity typically involves a comparison, on a visual or phonetical level, between the trademark and the domain name. To satisfy the test, the trademark to which the domain name is said to be confusingly similar, would generally need to be recognizable as such within the domain name. The addition of common, dictionary, descriptive, or negative terms are usually regarded as insufficient to prevent confusing similarity. The SPLUNK mark is recognizable within the Domain Name. It is preceded by the word “star” and followed by the abbreviation “tech” (often used as shorthand for technical or technological). The only real issue therefore is whether the word “star” and the abbreviation “tech”, in their respective positions vis-à-vis the SPLUNK mark, renders the Domain Name something other than confusingly similar to the SPLUNK mark. In the Panel’s view, they do not. (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8)
The Panel therefore finds that the Domain Name is confusingly similar to the SPLUNK mark for the purposes of the Policy. Accordingly, paragraph 4(a)(i) of the Policy has been established. B. Rights or Legitimate Interests
By its allegations, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name and, as such, the burden of production shifts to the Respondent to come forward with arguments or evidence demonstrating that it does, in fact, have such rights or legitimate interests. The Respondent has not done so, its short email of August 17, 2019 appearing to focus on the content of its website rather than the Domain Name, and is thus far from an answer to the Complaint (even if it were in the form of a formal Response). Accordingly, the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent indeed lacks rights or legitimate interests in the Domain Name. However, despite the lack of any answer to the Complaint, the Panel is entitled to consider whether there would be anything inappropriate in such a finding.
Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances which, if proved, demonstrate that a respondent has rights to, or legitimate interests in, a disputed domain name. Thus, even if a respondent has not been licensed by or affiliated with a complainant (as is the case here), it might still be able to demonstrate rights or legitimate interests by reference to paragraph 4(c), or otherwise. For instance, a respondent can show that it has been commonly known by the domain name or that it is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers.
The Respondent is not known by the Domain Name. Moreover, the Respondent’s website does not appear noncommercial or fair in nature (given what appears to be a clear case of copying of content). Even if it were noncommercial or fair however, paragraph 4(c) contemplates “use” being without intent (for commercial gain) to misleadingly divert consumers. However, it appears that to mislead is what the Respondent likely has intended: the Domain Name incorporates the SPLUNK mark in its entirety, and the Panel finds that the inclusion of the abbreviation “tech” enhances the risk of confusion. Furthermore, use of the logo form of the SPLUNK mark, i.e. SPLUNK>, on the Respondent’s website, suggests an intent to mislead. It should be mentioned that the Respondent’s email of August 17, 2019, whilst not entirely clear, appears to be an attempt to blame a third-party developer for use on its website of the Complainant’s intellectual property. The Respondent however is responsible for its own website and the email offers no answer to the Complaint.
A respondent can also show that before any notice of dispute, it was using or had made 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. It is unlikely that any offering by the Respondent using a Domain Name confusingly similar to the SPLUNK mark (with which it is very likely to have been familiar) could be regarded as bona fide, particularly given the nature of the website to which the Domain Name resolves i.e. containing data-oriented articles and using the SPLUNK> mark.
There is no evidence before this Panel suggesting that the Respondent has or might have rights or legitimate interests in the Domain Name. On the contrary, the evidence suggests otherwise.
Accordingly, the Panel finds that the Respondent lacks rights or legitimate interests in the Domain Name and therefore the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.
Thus, for instance, (as described in paragraph 4(b)(iv) of the Policy), where it can be demonstrated that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it, there may well be a finding of bad faith registration and use. The Respondent here deliberately chose a confusingly similar domain name, incorporating the SPLUNK mark. The Respondent was very likely aware of the Complainant’s SPLUNK mark, given the liberal use of the SPLUNK> mark on, and orientation of the website to which the Domain Name resolves and, in these circumstances, there appears to be little doubt that the Respondent’s intention in registering and using the Domain Name was to divert Internet users by creating a likelihood of confusion. It is unlikely that the Respondent would have gone to the efforts it did in registering the Domain Name and setting up its website, unless there was a prospect of some commercial gain.
If UDRP proceedings are commenced in circumstances where a trademark of another (of which a respondent must have been aware) has been used in a confusingly similar domain name, it is incumbent on the respondent to come forward with an explanation if it is to avoid, or attempt to avoid, the risk of an adverse finding. Indeed, a respondent’s non-participation is a factor that can be taken into account in considering bad faith under the Policy. The Panel does not view the Respondent’s email of August 17, 2019, as meaningful participation (but in any event, it provides no answer to the Complaint).
In all the circumstances, the Panel finds that, for the purposes of the Policy, there is evidence of registration and use of the Domain Name in bad faith. 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.
Jon Lang
Sole Panelist
Date: September 16, 2019
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