The Complainant is SAP SE, Germany, represented by RNA IP Attorneys, India.
The Respondents are Ramesh D, India and Akshay Krishna, Softnsol, India. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 1, 2020. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On September 2, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondents and contact information in the Complaint. It also confirmed that the language of the Registration Agreements is English. The Center sent an email communication to the Complainant on September 21, 2020, 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 23, 2020. 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 Respondents of the Complaint, and the proceedings commenced on September 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 19, 2020. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on October 21, 2020. The Center appointed Matthew Kennedy as the sole panelist in this matter on November 17, 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 software company with customers around the world, including over 3000 customers in India. The Complainant is the registered proprietor of trademark registrations for SAP in multiple jurisdictions, including Indian trademark registration number 576754, registered on July 9, 1992, and specifying computer programs and software programs, computer program manuals and data recording means in class 9, and Indian trademark registration number 578462, registered on August 4, 1992, specifying computer program manuals in class 16. Those trademarks remain current. The Complainant registered the domain name The Respondents are ostensibly two individuals (in one case, also an organization) with the same contact address in India. The disputed domain names were registered on the following dates in the following names: Disputed domain name Date of registration Registrant name April 30, 2015 Ramesh D May 8, 2015 Ramesh D October 2, 2017 Akshay Krishna July 28, 2018 Akshay Krishna, SOFTNSOL April 4, 2019 Akshay Krishna July 15, 2020 Akshay Krishna The disputed domain names resolve to websites that offer online training courses in the SAP software product incorporated in each respective disputed domain name. The websites are presented in a similar manner, in most cases with the same layout, font and contact information. 5. Parties’ Contentions A. Complainant The disputed domain names are confusingly similar to the Complainant’s SAP trademark. The disputed domain names incorporate the SAP trademark in its entirety as their dominant element and combine them with words that describe the Complainant’s SAP courses. The Respondents have no right or legitimate interest in respect of the disputed domain names. The Respondents purpose in choosing the disputed domain names was plainly to use fame of the Complainant’s SAP mark to generate web-traffic and to confuse Internet users who might be looking for the Complainant and their famous suite of products/services. The Respondents are not and have never been known by the SAP mark or by any similar name. The Complainant has neither authorized the Respondents to use the disputed domain names containing the SAP mark nor to impart SAP online training courses. The Respondents are not Education Partners of the Complainant nor have they signed any Education license agreement with the Complainant to provide training and education courses. The disputed domain names were registered and are being used in bad faith. The fame and prior use of the Complainant’s SAP mark makes it extremely unlikely that the Respondents created the disputed domain names independently. The choice of the disputed domain names is allegedly based on the nature of the Complainant’s business of offering online training in SAP proprietary software and study materials. The Respondents’ intention is clearly to derive unfair monetary advantage by riding on the goodwill and reputation enjoyed by the Complainant in its SAP course contents, materials and brand name; to divert the Complainant’s business by offering SAP trainings in an illegal manner and thus, make unjust monetary gains. B. Respondent The Respondents did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Consolidation: Multiple Domain Name Registrants The amended Complaint initiates disputes in relation to nominally different domain name registrants. The Complainant alleges that the domain name registrants are the same entity or mere alter egos of each other. The Complainant requests consolidation of the disputes against the disputed domain name registrants pursuant to paragraph 10(e) of the Rules. The disputed domain name registrants did not comment on the Complainant’s request. Paragraph 3(c) of the Rules states that a complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder. However, the Panel does not consider that paragraph 3(c) was intended to enable a single person or entity to put a complainant to the unnecessary time, expense and effort of initiating multiple proceedings against technically different domain name registrants, particularly when each registration raises the same issues. In addressing the Complainant’s request, the Panel will consider whether (i) the disputed domain names or corresponding websites are subject to common control; and (ii) the consolidation would be fair and equitable to all Parties. See Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons,WIPO Case No. D2010-0281 and WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.2. As regards common control, the Panel notes that the address, telephone and email contact details for the registrants of all six disputed domain names are the same in the Registrar’s WhoIs database. Two disputed domain names are registered in the name “Ramesh D”, while the user name begins with “Ramesh” in the email contact details for all disputed domain names, even those registered in another name. “Softnsol” is listed as the registrant organization of one disputed domain name and presented as the owner of the rights in the website to which another disputed domain name resolves that is not registered in that organization name. All the disputed domain names are registered with the same Registrar. The websites to which the disputed domain names resolve are similarly presented, in most cases very similarly presented. In these circumstances, the Panel is persuaded that the registrants of all six disputed domain names are under common control or, indeed, the same person. As regards fairness and equity, the Panel sees no reason why consolidation of the disputes would be unfair or inequitable to any Party. Accordingly, the Panel decides to consolidate the disputes regarding the nominally different disputed domain name registrants (referred to below as “the Respondent”) in a single proceeding. 6.2 Substantive Issues Paragraph 4(a) of the Policy provides that a complainant must prove each of the following elements: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar Based on the evidence submitted, the Panel finds that the Complainant has rights in the SAP mark. Each disputed domain name wholly incorporates the SAP mark as its initial element. Each disputed domain name combines the SAP mark with other words to form a SAP product name, followed by the words “online” and “training” and, in one case, “logistics”. The SAP trademark is clearly recognizable within each disputed domain name. The other additional element is a Top-Level Domain (“TLD”) suffix (either “.com” or “.org”). As a technical requirement of domain name registration, the TLD suffix is generally disregarded in the comparison between a domain name and a trademark for the purposes of the Policy. Therefore, the Panel finds that the disputed domain names are identical to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy: (i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or (iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The disputed domain names resolve to websites that offer online training courses in the Complainant’s software products. The Complainant submits that it has not authorized the Respondent to use its SAP mark in the disputed domain names or entered into any license agreement with the Respondent. The websites to which the disputed domain names resolve all give the impression that they are affiliated with, or endorsed by, the Complainant. None of them contains any disclaimer advising that they are not authorized by the Complainant; on the contrary, the copyright notices on most of them include the SAP mark. The Panel does not consider this use to be a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. Not does this use constitute a legitimate noncommercial or fair use of the disputed domain name for the purposes of paragraph 4(c)(iii) of the Policy. There is no evidence that the Respondent has been commonly known by the disputed domain names within the meaning of paragraph 4(c)(ii) of the Policy. In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent failed to rebut that prima facie case because he did not respond to the Complainant’s contentions. Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows: “(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location.” The disputed domain names were registered between 2015 and 2020, many years after the Complainant obtained its trademark registrations for SAP, including in India where the Respondent is located. The initial element of each disputed domain name is the Complainant’s SAP trademark, which is combined with other words to form one of the Complainant’s SAP product names. That is evidently a deliberate choice. These facts indicate to the Panel that the Respondent was aware of the Complainant and targeted its SAP trademark at the times that he registered the disputed domain names. The Respondent uses the disputed domain names in connection with websites that offer online training courses in the Complainant’s SAP products. The websites give the false impression that they are affiliated with, or endorsed by, the Complainant. The disputed domain names are clearly intended to attract Internet users by creating a likelihood of confusion with the Complainant’s SAP mark as to the affiliation or endorsement of the Respondent’s websites. In view of the findings in Section 6.2B above, the Panel finds that these circumstances fall within the terms of paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the disputed domain names have been registered and are being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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 names, Matthew Kennedy
Sole Panelist
Date: November 23, 2020
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