The Complainant is GrandVision Group Holding B.V., Netherlands, represented by Novagraaf Nederland B.V., Netherlands.
The Respondent is Name Redacted1 . 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2019. On September 24, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 24, 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 September 26, 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 September 27, 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 September 30, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 20, 2019. The Center received an email from a third party on October 4, 2019, claiming identity theft. No further response was received by the Center. Accordingly, the Center notified the Parties of the commencement of the Panel appointment process on October 4, 2019. The Center appointed Kaya Köklü as the sole panelist in this matter on October 25, 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 an internationally active company with its registered seat in the Netherlands and over 7,000 stores in more than 40 countries. It is a provider for optician services, optical retailing and eye care products. The Complainant is the owner of the trademark GRANDVISION, which is inter alia registered as International Trademark Registration No. 1211213 (registered on May 21, 2014) covering trademark protection in many jurisdictions (including the European Union and the United States of America), inter alia, for products and services covered in classes 9, 35 and 44. The Complainant also owns and operates various domain names comprising its GRANDVISION trademark, such as The Respondent is an individual, whose name is redacted as a third party may probably have used the named Respondent’s identity for registering the disputed domain name without her or his consent. The disputed domain name was registered on August 19, 2019. According to information provided in the case file, the disputed domain name does and has never resolved to an active website. However, as evidenced in Annex 9 to the Complaint, the disputed domain name has been used to send fake emails to employees of the Complainant, pretending that the sender is the CFO of the Complainant who is asking for an urgent payment execution. 5. Parties’ Contentions A. Complainant The Complainant requests the transfer of the disputed domain name. The Complainant is of the opinion that the disputed domain name is confusingly similar to its GRANDVISION trademark. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent was aware of the Complainant’s GRANDVISION trademark, when registering the disputed domain name. Also, it is argued that the disputed domain name is used in bad faith, namely for criminal and fraudulent purposes. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; 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. Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint’s contentions. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228. However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the WIPO Overview 3.0. A. Identical or Confusingly Similar The Panel finds that the Complainant has registered trademark rights in the mark GRANDVISION by virtue of various trademark registrations, including a trademark registration covering protection in the United States of America, where the Respondent appears to be located. The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered GRANDVISION trademark, as it fully incorporates the Complainant’s trademark. As stated at section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, an addition of other terms or letters would generally not prevent a finding of confusing similarity. In view of the Panel, the mere addition of the letters “NL” (which obviously stands for “the Netherlands”) does not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s GRANDVISION trademark. Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license to use the Complainant’s GRANDVISION trademark in a confusingly similar way within the disputed domain name. In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of a right or legitimate interest in the disputed domain name. In fact, the Panel is of the opinion that using the disputed domain name for sending phishing emails to employees of the Complainant for obviously fraudulent purposes can per se not qualify as a right or legitimate interest for purposes of the second element. Just for the sake of completeness, the Panel further notes that the nature of the disputed domain name also carries a risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0. Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith In the Panel’s view, the Respondent has registered and is using the disputed domain name in bad faith. The Panel is convinced that the Respondent had the Complainant’s trademark in mind when registering the disputed domain name. Furthermore, using the disputed domain name for sending out fake emails to employees of the Complainant by pretending to be the CFO of the Complainant and asking for urgent payment executions (cf. Annex 9 to the Complaint) is likely to be assessed as criminal phishing activity by the Respondent and, hence, in view of the Panel, a strong indication for the Respondent‘s overall bad faith intentions in registering and using the disputed domain name. The fact that the disputed domain name does not currently resolve to an active website does not change the Panel’s findings in this respect. Taking all facts of the case into consideration, the Panel believes that this is a typical cybersquatting case, which the UDRP was designed to stop. In view of the Panel, the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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 Kaya Köklü 1 As detailed in Section 4 of this decision, the record indicates a third party may have used the named Respondent’s name in registering the disputed domain name without the named Respondent’s consent. The Panel has accordingly decided to redact the Respondent’s name from the caption and body of this decision. However, the Panel has included in Annex 1 to this decision an instruction to the Registrar which includes the Respondent’s name. The Panel has authorized the Center to transmit Annex 1 to the Registrar, and has indicated that Annex 1 is not to be published given the circumstances of this case. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,WIPO Case No. D2009-1788.
Sole Panelist
Date: November 3, 2019
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