The Complainant is Drägerwerk AG & Co. KGaA, Germany, represented by Bardehle Pagenberg Partnerschaft mbB, Germany.
The Respondent is Domain Admin, Privacy Protect, LLC (PrivacyProtect.org), United States of America / BLACK ROSES, United States of America. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 25, 2020. On November 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 26, 2020, 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 November 29, 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 amendment to the Complaint on November 30, 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 the Respondent of the Complaint, and the proceedings commenced on December 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2021. The Center appointed Anne-Virginie La Spada as the sole panelist in this matter on February 12, 2021. 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 founded in 1889 and based in Lübeck in Germany. It is active in the field of breathing and protection equipment, gas detection and analysis systems, and noninvasive patient monitoring technologies. The Complainant has more than 14,500 employees and is present in 190 countries. Customers of the Complainant include hospitals, fire departments and diving companies. The Complainant’s company name is “Drägerwerk” but it is also referred to as “Dräger”. The term “werk” in its company name is a German word meaning “site” or “facility”. The Complainant is the owner of several trademark registrations for DRAEGER in a large number of countries and in particular the following: - International trademark registration number 1332205 registered on December 8, 2016, in classes 37 and 41. The Complainant is also the owner of several domain names for or incorporating “draeger” and in particular the following: - The disputed domain name At the time of filing of the Complaint, the disputed domain name redirected to the Complainant’s website. Currently, the disputed domain name resolves to a website with third party pay-per-click links. The Respondent has obtained a certificate for the disputed domain name. Such certificate, as well as the MX record (i.e. the mail exchanger record specifying the mail server responsible for accepting email messages) for the disputed domain name, suggest that it is or was possibly used for email communication. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to its DRAEGER trademark and to its company name. Indeed, the disputed domain name incorporates the trademark DRAEGER in its entirety, and the addition the generic term “group” does not obviate confusion. On the contrary, it may lead the public to think that the disputed domain name intends to identify the Complainant and its “group” of businesses. The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name and in the “DRAEGER” name, and that the Respondent is not authorized by the Complainant to use the disputed domain name. The Complainant contends finally that the Respondent was aware of the prior rights of the Complainant, given that the disputed domain name includes the Complainant’s company name and redirects to the Complainant’s website. Through registration of the disputed domain name, the Respondent intentionally attempts to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. The disputed domain name is used for email communication, and this suggests, according to the Complainant, that the disputed domain name might be used for phishing or spamming attacks, where the registrant of a domain name tries to impersonate the right holder. The Complainant therefore contends that the disputed domain name has been used and registered in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, a complainant must assert and prove each of the following: (i) the domain name registered by the respondent is 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 domain name; and (iii) the domain name registered by the respondent has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant owns trademark registrations for the trademark DRAEGER. The disputed domain name As a rule, UDRP panels consider that the addition of a descriptive term does not prevent a finding of confusing similarity (see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and Deutsche Lufthansa AG v. Transure Enterprise Ltd / Above.com Domain Privacy, WIPO Case No. D2012-1742). In the present case, the trademark DRAEGER is clearly recognizable in the disputed domain name. The mere addition of the descriptive terms “werk” and “group” does not change the overall impression produced by the disputed domain name and does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark (see for example DPDgroup International Services GmbH & Co. KG v. Whois Privacy Protection Foundation / Aurelius Mark,WIPO Case No. D2019-3141). UDRP panels also accept that a generic Top-Level Domain (“gTLD”), such as “.com”, should be disregarded when assessing whether a domain name is identical or confusing similar to a trademark (see section 1.11 of the WIPO Overview 3.0). The Complainant has thus satisfied the condition set forth in paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Based on the information submitted by the Complainant, the Respondent does not appear to have rights or legitimate interests in respect of the disputed domain name, nor has the Complainant granted to the Respondent an authorization to use the disputed domain name. Moreover, there is no evidence indicating that the Respondent is commonly known by the disputed domain name. The Respondent does not appear to have operated any bona fide or legitimate business under the disputed domain name and is not making a noncommercial or fair use of the disputed domain name. Instead, the disputed domain name resolved to the Complainant’s website. Finally, the Respondent did not file a response to the Complaint. The Panel may draw from the lack of a Response the inferences that it considers appropriate, according to the Rules, paragraph 14(b). The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Accordingly, 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, which has not been rebutted by the Respondent. Therefore, the Complainant has satisfied the condition set out in paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Given the distinctive nature of the trademark DRAEGER and the fact that the disputed domain name reproduces the Complainant’s trade name “Draegerwerk”, the Panel considers that the Respondent could not ignore the existence of the Complainant and of its DRAEGER trademark at the time of the registration of the disputed domain name. Consequently, the Panel finds it unlikely that the disputed domain name was chosen independently without reference to the Complainant’s trademark. The disputed domain name used to redirect to the Complainant’s website. The Panel finds that this use was intended to deceive Internet users into believing that the disputed domain name was an official domain name of the Complainant and the Panel cannot conceive of any good faith use that the Respondent could have made of it (see Securitas AB v. Advocaat Peter,WIPO Case No. D2020-2126 and Ann Summers Limited v. Domains By Proxy, LLC / Mingchun Chen,WIPO Case No. D2018-0625). Furthermore, the certificate and the MX record relating to the disputed domain name suggest that it is or was possibly used for email communication. Under these circumstances, the Panel considers it likely that the Respondent intended to use the disputed domain name as a support for a potential fraudulent email scheme, namely to impersonate the Complainant and extract personal or financial data from persons believing that the communication comes from the Complainant. Panels have found that such behavior amounts to use of a domain name in bad faith (see Marriott International, Inc., Marriott Worldwide Corporation and The Ritz-Carlton Hotel Company, LLC v. Van C Bethancourt Jr., Andre Williams,WIPO Case No. D2018-2428 and Accor v. Sangho Heo, Contact Privacy Inc.,WIPO Case No. D2014-1471). The Panel accepts therefore that the disputed domain name has been used in bad faith. Moreover, the current use of the disputed domain name to a website with third party pay-per-click links is further evidence of the Respondent’s bad faith. For the reasons set out above, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith, and that the Complainant has satisfied the condition set forth in 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 Anne-Virginie La Spada
- International trademark registration number 1357586 registered on December 8, 2016, in classes 1, 9 and 11.
- International trademark registration number 1369347 registered on December 8, 2016, in class 10.
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Sole Panelist
Date: February 26, 2021
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