The Complainant is SAP SE, Germany, represented by RNA, Technology and IP Attorneys, India.
The Respondent is Way choice, Way 3 choice, India. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2020. On May 19, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 20, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 June 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 25, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 2, 2020. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on July 8, 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 The Complainant is a company organized and existing under the laws of Germany, founded in 1972. The Complainant makes enterprise application software, business analytics, and mobile solutions. In India, where the Respondent is located, the Complainant has over 3,000 customers. In addition, the Complainant coined, adopted and commenced use of the SAP trademark in the year 1972. Moreover, the Complainant is the registered proprietor of the trademarks SAP and various SAP formative trademarks in over 75 countries, among others: - SAP, Germany trademark registration No. 576754, registered on July 9, 1992; and Furthermore, the Complainant owns the domain name The Respondent registered the Disputed Domain Name The Complainant contentions can be summarized as follows: Identical or confusingly similar The Complainant states that the Disputed Domain Name incorporates its SAP trademark in its entirety. The addition of the words “solutions‟ and “online‟, are related to online training classes and solutions. Such use of the online educational/training and software related terms to the Complainant’s SAP trademark does not alter the fact that Complainant’s trademark is the dominant portion of the Disputed Domain Name. Rights or legitimate interests The Complainant alleges that the Respondent registered the Disputed Domain Name in the year 2011, several decades after the Complainant invested millions of USD in popularizing and seeking registration of the SAP trademark and domain name The Complainant further states that the Respondent’s purpose in choosing the Disputed Domain Name was plainly to use fame of the Complainant’s SAP trademark in order to generate web traffic and to confuse Internet users who might be looking for the Complainant’s products/services. In addition, the Respondent is not and has never been known by the SAP mark/name or by any similar name. In this sense by using the Disputed Domain Name, the Respondent seeks to take advantage of the goodwill accumulated by the Complainant, making it clear that the Respondent fraudulently registered the Disputed Domain Name with dishonest intention. Finally, the Respondent has no right to use the SAP trademark as part of its domain name as the Complainant has not authorized any such use. Registration and use in bad faith The Complainant contends that the Respondent had registered and is using the Disputed Domain Name in bad faith. The fame and prior use of the Complainant’s SAP trademark makes it extremely unlikely that the Respondent created the Disputed Domain Name independently. Further, the Respondent’s choice of the Disputed Domain Name is allegedly based on the nature of Complainant’s business of offering online trainings about SAP proprietary software and study materials. Given the prominence and well-known stature of Complainant’s SAP products/services, it is impossible that the Respondent was unaware of Complainant’s SAP mark at the time of registering the Disputed Domain Name in 2011. Finally, the registration and use of the Disputed Domain Name is to divert Internet traffic by using the Complainant’s well-known/ famous trademark SAP. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements, which the Complainant must satisfy with respect to the Disputed Domain Name at issue in this case: “(i) the domain name is identical or confusingly similar to a trademark or service mark in the which the complainant has rights; (ii) the respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith.” A. Identical or Confusingly Similar Based on the evidence submitted, this Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark SAP. The Disputed Domain Name wholly incorporates the Complainant’s trademark as its only distinctive element. Furthermore, the Disputed Domain Name contains the Complainant’s SAP trademark in its entirety. The Disputed Domain Name only differs from the Complainant’s trademark with the addition of the terms “solutions” and “online”. The addition of such terms does not eliminate the confusing similarity with the Complainant’s trademark. Therefore, this Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name: “(i) before any notice to you of the dispute, your use of, 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; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are 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 at issue.” There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the SAP trademark. The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name or that the Disputed Domain Name is used in connection with a bona fide offering of goods and services. The Respondent had the opportunity to demonstrate its rights or legitimate interests, but it did not reply to the Complainant’s contentions. As such this Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Disputed Domain Name was registered in 2011 several years after the Complainant registered its trademarks. The fact that the Respondent started providing SAP online training at his website, immediately after registering the Disputed Domain Name clearly demonstrates that the Respondent was aware of the Complainant’s SAP products when registering the Disputed Domain Name. Furthermore, the Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register the Disputed Domain Name incorporating its trademarks. In addition, the Complainant submitted evidence that the Respondent’s website creates the impression that the online website is an official website of the Complainant’s online trainings in India. Thus, Internet users might have well been under the impression that the Disputed Domain Name was created and is operated by a reseller of the Complainant with the Complainant’s consent. The circumstances in the case before the Panel indicate that the Respondent was aware of the Complainant’s trademarks when registering the Disputed Domain Name and has created a likelihood of confusion with the Complaint’s trademarks and website in order to attract Internet users for his own commercial gain. Due to this conduct, it is obvious that the Respondent intentionally created likelihood of confusion with the Complainant’s trademarks and website in order to attract Internet users for his own commercial gain, as required by paragraph 4(b)(iv) of the Policy. Therefore, taking all circumstances into account and for all above reasons, the Panel concludes that the Respondent has registered and used the Disputed 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 Pablo A. Palazzi
- SAP, India trademark registration No. 989935, registered on February 13, 2001.
Sole Panelist
Date: July 23, 2020
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