Complainant is Migros-Genossenschafts-Bund, Switzerland, represented by SILKA Law AB, Sweden.
Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Jasmine Julius, Nigeria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2020. On February 12, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On the same day, 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 Complainant on February 13, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on February 17, 2020. 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 Respondent of the Complaint, and the proceedings commenced on February 19, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 10, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 11, 2020. The Center appointed Lawrence K. Nodine as the sole panelist in this matter on March 19, 2020. 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 Based in Switzerland, Complainant is the parent organization of the regional Migros Cooperatives, consisting of travel agencies, cultural institutions, museums, magazines, and restaurants. Additionally, one of Complainant’s subsidiaries is Migros Bank, which was founded in 1958 and now operates in 67 locations in Switzerland. For decades, Complainant and its subsidiaries have used marks comprised of the term MIGROS in connection with their various goods and services. Complainant owns several registrations for its MIGROS-formative marks, including Swiss Registration No. P-405500 for the MIGROS word mark, registered on September 20, 1993; Swiss Registration No. 414500 for the MIGROSBANK word mark, registered on January 12, 1995; and Swiss Registration No. 623618 for the MIGROSBANK design mark, registered on December 12, 2011. Respondent registered the Disputed Domain Name on December 31, 2019. The website associated with the Disputed Domain Name previously displayed Complainant’s MIGROSBANK design mark. The Disputed Domain Name does not presently resolve to an active website. 5. Parties’ Contentions A. Complainant Complainant alleges that the Disputed Domain Name is identical to Complainant’s MIGROS trademark. According to Complainant, the addition of the term “banks” exaggerates the confusing similarity between the Disputed Domain Name and Complainant’s mark. Complainant further alleges that Respondent lacks rights and legitimate interests in respect of the Disputed Domain Name. Complainant contends that there is no evidence that Respondent is using or has made demonstrable preparations to use the Disputed Domain in connection with a bona fide offering of foods or services. As to Respondent’s bad faith, Complainant asserts that Respondent adopted Complainant’s logo and created a website that was deceptively similar to Complainant’s website. Complainant additionally asserts that Respondent used the Disputed Domain Name to mislead consumers into believing Respondent’s website, was associated with Complainant. Thus, according to Complainant, Respondent registered and is using the Disputed Domain Name in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Complainant has demonstrated its rights in the MIGROS and MIGROSBANK trademarks by way of its trademark registrations. The Disputed Domain Name incorporates the MIGROSBANK mark in its entirety. The Panel finds that the Disputed Domain Name is identical to Complainant’s MIGROSBANK mark. Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Complainant has presented a prima facie case for Respondent’s lack of rights or legitimate interests in the Disputed Domain Name, which Respondent has failed to rebut. Respondent is using the Disputed Domain Name to pass itself of as Complainant, as evident from the display of Complainant’s MIGROSBANK design mark on Respondent’s website. Impersonation of a complainant cannot confer rights or legitimate interest on a respondent. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.13.1. Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Respondent registered and has used the Disputed Domain Name in bad faith. The Disputed Domain Name is identical to Complainant’s MIGROSBANK mark. Additionally, Respondent reproduced Complainant’s MIGROSBANK design mark on its website. This evidence supports the inference that Respondent registered the Disputed Domain Name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks. Respondent has used the Disputed Domain Name to impersonate Complainant for financial gain. Impersonation is clear evidence of bad faith registration and use. FLRish IP, LLC v. prince zvomuya,WIPO Case No. D2019-0868. Complainant has satisfied 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 Lawrence K. Nodine
Sole Panelist
Date: April 2, 2020
Full & Egal Universal Law Academy