The Complainant is DPDgroup International Services GmbH & Co. KG, Germany, represented by Fidal, France.
The Respondent is Sebastian Hetzenauer, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2019. On August 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 2019, the Registrar transmitted by email 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 email communication to the Complainant on August 28, 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 the same date.
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 September 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 25, 2019.
The Center appointed Brigitte Joppich as the sole panelist in this matter on October 10, 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 the registered owner of inter alia international trademark no. 761146 for DPD and device in international classes 36 and 39 with a priority of May 26, 2001, international trademark (device) no. 1214203A in international classes 9, 16, 35, 39, and 42 with a priority of March 12, 2014, international trademark no. 1217471 for DPD in international classes 9, 16, 35, 39, and 42 with a priority of March 28, 2014, and international trademark no. 1271522 for DPD GROUP and device in international class 39 with a priority of August 25, 2015 (the “DPD Marks”), and the domain name registered on March 20, 1991.
The disputed domain name was registered on May 6, 2019, and is used in connection with a website reproducing the Complainant’s DPD Marks. 5. Parties’ Contentions A. Complainant
With regard to the three elements specified in the Policy, paragraph 4(a), the Complainant contends that each of the three conditions is given in the present case.
(i) The disputed domain name is confusingly similar to the DPD Marks, as the addition of “serv” is non-distinctive and merely heightens the risk of confusion for potential Internet users.
(ii) The Respondent allegedly is not commonly known under the disputed domain name nor is he using a business name including the acronym DPD or offering products or services bona fide. The Complainant has not licensed its DPD Marks to the Respondent or otherwise authorized or agreed to their use. Therefore, the Respondent has no rights or legitimate interests in respect of the disputed domain name.
(iii) The Complainant claims that the disputed domain name was registered and is being used in bad faith. The disputed domain name resolves to a website not only reproducing the DPD Marks as well as their graphic layout composed of red and grey colors and square block forms but also reproducing the look and feel of the Complainant’s website. Moreover, the disputed domain name was demonstrably used in connection with fraudulent activities (Annex 8 of the Complaint) and the Respondent allegedly built a confusing imitation of the Complainant’s corporate website to make his scams and phishing operations more convincing. The Respondent’s website at the disputed domain name is also claimed to be used for false escrow services. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under the Policy, paragraph 4(a), the Complainant must prove that each of the following three elements is present:
(i) the disputed domain name is identical or confusingly similar to the Complainant’s trademark; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the DPD Marks as it contains the distinctive word element of such trademarks (i.e., DPD) in its entirety, merely adding the descriptive term “serv” which is easily recognized as an abbreviation for “service”.
The Panel finds that the Complainant satisfied the requirements of the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the disputed domain name, it is the consensus view among UDRP panels that a complainant has to make only a prima facie case to fulfill the requirements of the Policy, paragraph 4(a)(ii). As a result, once a prima facie case is made, the burden of coming forward with evidence of the respondent’s rights or legitimate interests in the disputed domain name will then shift to the respondent.
The Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that the burden of production has been shifted to the Respondent.
The Respondent did not deny these assertions in any way and therefore failed to come forward with any allegations or evidence demonstrating any rights or legitimate interests in the disputed domain name.
Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either.
The Respondent is using the disputed domain name for a website offering services similar to those of the Complainant, displaying a website using the Complainant’s trademarks and imitating the look and feel of the Complainant’s website.
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain name under the Policy, paragraphs 4(a)(ii) and 4(c). C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent registered and used the disputed domain name with full knowledge of the Complainant and its rights in the DPD Marks and thus in bad faith: The Respondent used the disputed domain name in connection with a website featuring transport and delivery services similar to those offered by the Complainant while imitating the look and feel of the Complainant’s website and displaying the word and device elements of the Complainant’s DPD Marks. Moreover, a link to the website at the disputed domain name was featured in connection with fake escrow services in the name of a “DPD COURIER & ESCROW Service Team”.
By fully incorporating the distinctive word element of the DPD Marks into the disputed domain name and by using such disputed domain name as outlined above, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant’s website to its own for commercial gain as set out under the Policy, paragraph 4(b)(iv).
Consequently, the Panel finds that the Respondent registered and used the disputed domain name in bad faith and that the Complainant satisfied the requirements of the Policy, paragraph 4(a)(iii). 7. Decision
For the foregoing reasons, in accordance with the Policy, paragraph 4(i) and the Rules, paragraph 15, the Panel orders that the disputed domain name be transferred to the Complainant.
Brigitte Joppich
Sole Panelist
Date: October 24, 2019
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