The Complainant is GEA Group Aktiengesellschaft, Germany, represented by Bardehle Pagenberg Partnerschaft mbB, Germany.
The Respondent is Bilal Yrtck, Turkey, self-represented. 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 26, 2020. On November 26, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 30, 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 December 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2020. The Response was filed with the Center on December 10, 2020. The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on January 4, 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. On January 19, 2021, the Complainant’s representative wrote to the Center requesting a suspension of the proceedings in view of ongoing settlement negotiations. The Complainant’s representative noted that a certain offer had been made by the Respondent to settle matters and provided a copy of a letter sent to it by the Respondent’s representatives in support of same. On January 21, 2021, the Respondent wrote to the Center confirming that its legal counsel was in contact with the Complainant’s counsel but denying that it had offered to transfer the disputed domain name to the Complainant. The due date for the Panel’s Decision was January 18, 2021 and the Decision was already complete and in draft by that date. Nevertheless, the Panel reviewed the letter from the Respondent’s counsel, which had been forwarded by the Complainant’s representative on January 15, 2021, in machine translation from the original Turkish. As far as the Panel could tell, this appeared to reiterate the Respondent’s position as disclosed both in the Response and in its email to the Center of January 21, 2021 and only in the last paragraph the Respondent mentioned “a possible acquisition of its trademark” by the Complainant. The Panel is of the opinion that what was briefly mentioned comprises a wider range of issues than just the disputed domain name. Paragraph 17 of the Rules sets out the process of settlement or other grounds for termination. The first step is that the Parties must provide written notice of a request to suspend the proceedings. While the Complainant’s representative has made such a request, the Respondent does not appear to be agreeable to this and has not made or assented to any such request for its part. The Respondent’s email in response to the Complainant request for suspension clearly states that: “we have not offered to transfer the domain for an amount/compensation to be paid. The complainant offered us an amount which we didn’t agree.” In all of the above circumstances, and in particular in light of the fact that the settlement request has been made at the point where the Panel’s Decision was complete and was about to be notified, the Panel refuses the Complainant’s request to suspend the administrative proceeding and will proceed to a Decision. 4. Factual Background The Complainant is a German company and is one of the world’s largest suppliers to the food processing industry, generating revenues in excess of EUR 4 billion per year, of which over 70 percent comes from the food sector. One of the Complainant’s divisions focuses on refrigeration technologies and is a global specialist in industrial refrigeration. Among other activities, the Complainant operates a series of events known as the “Cooling Club” aimed at specialist planners for technical building equipment, contractors, investors, and operators from the refrigeration and air-conditioning industry. The Complainant has local presences in many countries, including Turkey, where the Respondent is based. The Complainant has been in the Turkish market for refrigeration systems for over 30 years and also operates in agricultural technologies in Turkey. The Complainant demonstrates its industrial cooling technology to the public in Turkey via the “Magic Ice Museum” in Istanbul, Turkey. The Complainant has used the trademark and trade name GEA since 1906 and owns several corresponding registered trademarks including, for example, International registered trademark no. 1341160 in respect of the word mark GEA, registered on September 2, 2015 in 27 different use classes, including a wide variety of uses in class 11 such as air cooling apparatus and filters for industrial and household use. Said mark is designated in respect of some 67 territories, including Turkey. The Complainant has registered and uses a variety of “gea” based domain names, including The corresponding WhoIs record shows that the disputed domain name was created on July 8, 2020. It is registered to the Respondent, Bilal Yrtck of Turkey, with no organization listed. The disputed domain name was originally used for a partially developed website appearing to be the landing page of a site advertising a financial services consultancy business called Golden Euroasia Limited, of which the general manager is Bilal Yurtçak. On said website, said company offered to consult on international investments, real estate, and import-export matters. On August 4, 2020, the Complainant launched a complaint against the Respondent under the Policy in respect of the disputed domain name, namely GEA Group Aktiengesellschaft v. Bilal Yrtck,WIPO Case No. D2020-2062 (“the Previous Case”). The present case is therefore a refiled case. In the Previous Case, the Complainant contended that it was reasonable to infer bad faith on the Respondent’s part because the Complainant had prior trademarks in Turkey covering its main fields of business together with real estate and financial services. The Complainant asserted that there was no doubt that the Respondent must have been aware of the Complainant’s rights and had registered and used the disputed domain name to misdirect Internet users to the Respondent’s website in order to sell the Respondent’s competing financial consultancy services in Turkey. The panel declined to find that the disputed domain name had been registered and used in bad faith for the following reasons: - The Complainant’s mark, though long-established, was not a consumer mark or household word. In the present Complaint, the Complainant asserts that the factual background has changed, in that just after the Decision was rendered in the Previous Case, the website associated with the disputed domain name began to redirect to a website at “www.climask.com.tr” advertising filters for use with air conditioners. It has since reverted to a default “Wordpress” website containing default forms and templates with sample content. The Complainant has also identified that the Respondent is listed on a different website as a client relations manager, and on which the Respondent’s biography states that he introduced household air conditioners to the Turkish market in 2012 and that his family company became a prominent brand in the Turkish agricultural industry before he established Golden Euroasia Limited in Hong Kong some 9 years ago. 5. Parties’ Contentions A. Complainant The Complainant contends as follows: Identical or Confusingly Similar The disputed domain name fully incorporates the Complainant’s GEA marks, while the generic Top-Level Domain (“gTLD”), “.ltd” may be disregarded. The panel in the Previous Case identified confusing similarity between the disputed domain name and the Complainant’s marks. Rights or Legitimate Interests Neither the Respondent nor any company acting under the disputed domain name has any registered trademarks, trade names or personal names corresponding to the designation “gea” or the disputed domain name. The associated website has featured various purposes and content in recent months which do not show any legitimate interest. The panel in the Previous Case did not find rights and legitimate interests based upon the Respondent’s suggestion that said designation refers to the initials of its consultancy. The disputed domain name subsequently pointed to the website at “www.climask.com.tr”. The Complainant is unaware of any relations between the Respondent and the company operating such website and such use does not confer any rights and legitimate interests upon the Respondent. Said website now points to a content management system and only shows standard templates. This mock or fake use is insufficient to prove actual or bona fide use or demonstrable preparations therefor. The Complainant has provided no license or authorization to the Respondent to use the designation “gea”. Registered and Used in Bad Faith The Respondent must have been aware of the existence of the Complainant’s marks when it registered the disputed domain name. Said marks long pre-date the disputed domain name, and are protected in many countries including Turkey, where the Complainant has a substantial business and the Respondent is located. It has been identified from the Respondent’s biography that the Respondent has been active in the field of cooling systems and agricultural industries, competing with the core businesses of the Complainant. There is sufficient evidence of the Respondent’s actual use in bad faith. There is clear infringement of the Complainant’s rights in its GEA trademark in respect of the previous offer of financial services and business consultancy by the Respondent. The Respondent has a history of activities in the cooling and agricultural business. Just after the Decision in the Previous Case, the Respondent strikingly shifted the use of the disputed domain name from the fake use for real estate and financial services to cooling systems and air conditioning products. This is a bait and switch which intentionally misappropriates the Complainant’s mark to redirect Internet users to the website at the disputed domain name. This real activity competes with the Complainant’s well-known cooling system and profits from the reputation of its brand. The current status of the Respondent’s website shows mock/fake content with templates from a content service provider and is further evidence that the disputed domain name is not used in connection with a bona fide offering of goods or services. The Respondent never had any real intention to use the disputed domain name in connection with real estate or business consulting and its intention was at best a passive holding or bait and switch. The Respondent’s family business focuses on cooling systems and agricultural technology which are among the Complainant’s core fields. It is clear that the Respondent’s use of the disputed domain name was for bad faith purposes. The disputed domain name consists only of the Complainant’s mark with a non-distinctive gTLD. This typically suggests sponsorship or endorsement by the trademark owner. B. Respondent In the email which it describes as its official Response, the Respondent contends as follows: The Respondent is the founder of Golden Euroasia Limited, founded in Hong Kong in 2011 and carrying out import and export activities. Today, it has several lines of business including international investment consulting, real estate, and investment-based citizenship. Said company has recently been promoting its newest products: the “Climask Antiviral Air Conditioner Filter” and the “Hotmask (protective face mask)”. “Climask” is a novel product which promotes human health via antiviral fabric, for which patents are under application internationally. A relative slide presentation on “Climask” is produced, together with a translation of a technical report into its antibacterial, antiviral and antimicrobial properties addressed to Golden Euroasia Limited, a verification of conformity certificate in accordance with various European Union standards, advertising and marketing materials and sample packaging. Until recently, the Complainant and its brand name were not in the Respondent’s knowledge. Although the Complainant claims that the Respondent is using the Complainant’s name recognition to its advantage in the field of cooling systems, such systems are not one of the Respondent’s lines of business. Regardless of the Respondent’s family’s work in the field of cooling systems, Golden Euroasia Limited will always be known for its work in areas such as international investment consulting, real estate, investment-based citizenship, and the research, development and trading of innovative products, not air cooling systems. Had the Respondent wanted to use the Complainant’s name recognition to its advantage, it would not have used its own name in its website. The Respondent has been extremely busy over the last couple of months and has not had time to complete the editing of its website. It did not cross the Respondent’s mind to use the Complainant’s name to its advantage and, as a solution, the Respondent chose to direct the disputed domain name to one of its product websites at “www.climask.com.tr” temporarily instead of producing a 404 error on the page. The Respondent believes in transparency above all and for this reason produces its Business Registration Certificate to show the principal activities of its company. (The Panel notes in passing that the Respondent in fact produces its annual financial accounts for the year to March 31, 2015 and not a business registration certificate). The Respondent chooses to use the disputed domain name as an abbreviation for the Respondent’s company name. As in the Previous Case, the Panel will take into account that this statement is not accompanied by the certification of accuracy and completeness required by Rule 5(c)(viii), as would be expected in the case of a formal Response. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (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. A. Preliminary matter: Refiled Complaint A refiled case is one in which a newly-filed UDRP complaint concerns identical domain name(s) and parties to a previously-decided UDRP case in which the prior panel denied the complaint on the merits (see section 4.18 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). There is no express right to refile a complaint and such refiled cases are exceptional. A party seeking to make a refiled case is expected to indicate the grounds it believes would justify acceptance thereof. In the present case, the Complainant contends that matters which have been identified since the Decision in the Previous Case shed new light on the facts and circumstances, and, in particular, demonstrate that the disputed domain name was registered and is being used in bad faith. These matters are described in the factual background section above and are discussed in connection with the third element assessment in section D below. The Panel notes that the matters described by the Complainant, at least regarding the alleged changes of content on the Respondent’s website following notification of the Decision in the Previous Case, prima facie constitute new material evidence that was reasonably unavailable to it prior to it launching the Previous Case. In these circumstances, the Panel accepts the refiled Complaint and will proceed to determine this on the merits. B. Identical or Confusingly Similar The Panel is satisfied that the Complainant has rights in its GEA mark in terms of the various registered trademarks cited in the Complaint, including that listed in the factual background section above. The second level of the disputed domain name is alphanumerically identical to such mark. The gTLD, in the case of the disputed domain name, “.ltd”, is typically disregarded for the purposes of comparison as being generally required for technical reasons only (see section 1.11 of the WIPO Overview 3.0). In these circumstances, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s GEA mark and that the first element under the Policy has been established. C. Rights or Legitimate Interests Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name: “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii): (i) before any notice to you of the dispute, your use of, or 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 mark at issue.” Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1 of the WIPO Overview 3.0). The panel in the Previous Case accepted that the Complainant had made out such prima facie case by virtue of its having demonstrated its trademark rights and a lack of permission for the Respondent to use the disputed domain name. That applies equally in the present case and there is no reason for the Panel to depart from that finding. Accordingly, the Panel turns to the Respondent’s case in order to determine whether it has brought forth relevant evidence of its rights or legitimate interests in the disputed domain name. Although the provisions of paragraph 4(c) of the Policy are expressed to be non-exhaustive, the nature of the Respondent’s case largely falls within paragraphs 4(c)(i) and 4(c)(ii) of the Policy. Paragraph 4(c)(iii) is not relevant because the Respondent is making a commercial use of the disputed domain name and does not claim to be making (nor does the evidence show) a noncommercial or fair use within the meaning of that particular provision. The Respondent effectively submits that it is commonly known as “GEA” due to these initials being present in its corporate name. Secondly, the Respondent argues that it is using the disputed domain name in connection with a bona fide offering of goods or services based on the various claims of commercial activity allegedly carried out by its company. It should be borne in mind that the panel in the Previous Case found that the Respondent had not established rights and legitimate interests in connection with the disputed domain name due to a lack of detail having been provided as to its business and commercial activities. This is relevant to the Respondent’s case under both paragraphs 4(c)(i) and 4(c)(ii) of the Policy in that the only new information produced by it in response to the refiled Complaint is the 2015 annual accounts for Golden Euroasia Limited along with some marketing and certification materials for the “Climask” product which state that said product was developed by Golden Euroasia Limited, the sole rights holder therefor, founded in Hong Kong on July 27, 2011. Taking the question of whether the Respondent has been commonly known by the disputed domain name first, it is important to note that none of the Respondent’s new information demonstrates any adoption by the Respondent of the initials “GEA”, independently from the disputed domain name, at any point. The Respondent’s company is referred to at all times in the documentation as Golden Euroasia Limited. The Respondent’s websites in the “Climask” presentation are listed as “www.climask.com” and “www.goldeneuroasia.com” rather than making reference to any website under the disputed domain name. In these circumstances, there is nothing before the Panel which indicates that the Respondent or its company have been commonly known by the name “GEA”. The fact that these initials are in theory capable of being extracted from the company name Golden Euroasia Limited does not demonstrate, on its own, that this has been the way in which the Respondent’s company has presented itself to the world (indeed the Respondent himself says that “till now, we have never been at intention of using GEA as a brand name). The Respondent has not therefore established a case under paragraph 4(c)(ii) of the Policy. With regard to whether the Respondent is making a bona fide offering of goods or services under the disputed domain name, the Panel notes that the nature of the Respondent’s alleged past and present activities through Golden Euroasia Limited are somewhat opaque. The Respondent has done little to clarify matters in response to the refiled case despite being on notice that, although it was successful on the overall assessment in the Previous Case, the panel was not satisfied that it had provided enough information to demonstrate rights and legitimate interests on that occasion. The Respondent previously claimed that its company was engaged in financial services and other consulting activities. No additional evidence has been produced in the present case elaborating upon or providing support for the notion that any such activities are carried on by it. For example, the Panel might have expected the Respondent to produce a copy of its financial services registration with the competent financial conduct authority in one or more territories. In the refiled Complaint, the Complainant describes the Respondent’s originally claimed business activities to be a sham. In that context, it is notable that the Respondent has chosen to provide no further evidence, choosing instead to rely only upon an unsupported assertion repeating the alleged lines of business in which Golden Euroasia Limited is said to be engaged. In the absence of suitable further information, the Panel cannot find that the Respondent’s alleged previous activities relating to financial services and consulting constitute a bona fide offering of goods and services for purposes of the instant proceeding in relation to the disputed domain name. In other words, that such financial and consulting services may in fact be undertaken is not by itself dispositive of a claimed right to the disputed domain name. The 2015 accounts produced with the Response indicate that the Respondent is, or at least was in 2015, the sole director of a company by the name of Golden Euroasia Limited. The Respondent thus would be connected with an entity which might potentially have referred to itself by the initials “GEA” and to have used these in connection with an offering of goods or services. However, of critical importance, such accounts do not refer to the company as “GEA”. Both the included report of the sole director and the explanatory notes to the financial statements state that the company is engaged in the trading of electronic products, being a quite different line of business from that previously claimed by the Respondent. This bears no relation to consulting and financial services. Furthermore, the Panel asks itself why the Respondent would only produce its company’s accounts from almost six years ago, without any suitable explanation or commentary, and also without providing earlier and later accounts for context. The Panel also asks itself why the Respondent did not produce its company’s business registration certificate as stated in the Response. Despite the inadequacies of the evidence, the Panel is prepared to infer from the various materials presented by the Respondent that it does operate a company named Golden Euroasia Limited. The new materials produced with the Response suggest that this company is presently engaged on developing the “Climask” product. This is a filter for attachment to cooling systems which is claimed to have antiviral properties. The “Climask” product is not itself branded as “GEA” and, according to the marketing materials produced with the Response, is promoted via its own website at “www.climask.com”. So far as the Panel is concerned, based on the present record, the Respondent’s company is free to market this product through such website or under such name. However, if the Respondent has promoted such product under the initials “GEA”, by way of the disputed domain name, that is a different matter. New evidence before the present Panel suggests that shortly after the Decision in the Previous Case was rendered, the disputed domain name, consisting exclusively of the initials “GEA” in the second level, was forwarded to the website promoting the Respondent’s company’s “Climask” product. Based on the present record, the Panel does not regard this use of the disputed domain name as constituting a bona fide offering of goods and services under the Policy with respect to the disputed domain name. The evidence establishes that the Complainant is an extremely prominent company in the markets previously described and that its GEA mark is particularly well-known in the field of cooling systems. The Respondent’s submission that its “Climask” product is not itself a cooling system amounts to hair-splitting when it is appreciated that the product is designed to supplement filters within air conditioners. Even if the Complainant majors in industrial cooling and the “Climask” product is primarily intended for use in domestic units, 1 confusion undoubtedly arises from the Respondent using the initials “GEA” in this context, whether or not it might argue that they have been extracted from its company name. The Respondent was already well aware of the potential for confusion when it pointed the disputed domain name to its “Climask” website, not least because of the Previous Case. In these circumstances, the Panel finds that the Respondent’s association of the initials “GEA” with the “Climask” product by way of the recent forwarding of the disputed domain name cannot satisfy the requirements of paragraph 4(c)(i) of the Policy. There is nothing to be added on this topic from the fact that the disputed domain name now forwards to a default website containing templates intended for website development. This is neutral to the Respondent’s position regarding both paragraph 4(c)(i) and paragraph 4(c)(ii) of the Policy. In all of these circumstances, the Panel finds that the Complainant has put forward a prima facie case that the Respondent has no rights and legitimate interests in the disputed domain name, that the Respondent has failed to rebut the Complainant’s case, and therefore that the second element under the Policy has been established. D. Registered and Used in Bad Faith The Previous Case was decided on the basis summarized in the factual background section above. Essentially, the panel found that the Complainant had failed to prove (in the face of the Respondent’s denial) that the Respondent knew of the Complainant when it registered the disputed domain name. The panel also determined that the Complainant had failed to prove that the disputed domain name was registered with intent to target the Complainant or its rights in the GEA mark. A key factor in that aspect of the panel’s Decision was that the Complainant’s business was not a consumer mark or household name and that the evidence suggested that the Respondent was not engaged in any competitive line of business, rather in the fields of consulting and financial services. In that particular context, the Respondent’s denial of prior awareness of the Complainant seemed reasonably plausible to the panel in the Previous Case. The Complainant now brings forward new evidence which shows that the content of the Respondent’s website changed after the Previous Case was determined. The website associated with the disputed domain name began to promote a device named “Climask”, being a filter for air conditioning systems. The Complainant says that this amounts to the promotion of products in competition with the Complainant. It is worth noting that the Complainant’s GEA trademark, as described in the factual background section above, covers not only cooling equipment but also filters for such equipment. The Complainant also brings forward evidence suggesting that the Respondent has claimed to be instrumental in its family business, which previously imported domestic coolers into Turkey and was developed into a prominent brand in the Turkish agricultural industry. The Complainant itself is prominent in the cooling industry, albeit at the industrial end of the market, and it is likewise highly active in the field of agricultural technology, in Turkey and elsewhere. This raises the reasonable inference that the Respondent might have had prior knowledge of the Complainant, including at the point when it registered the disputed domain name. The Response, however, simply contains a continued denial of such prior knowledge and suggests that the Respondent’s family business may be disregarded, particularly given the unrelated activities in which the Respondent’s company, Golden Euroasia Limited, engages. The Panel considers that the Complainant has put forward a reasonable case for the Respondent having had the requisite prior knowledge on the balance of probabilities. It seems somewhat unlikely that the Respondent, working in its family company to import domestic coolers, would not have heard of its major industrial equivalent, especially given that company’s prominence in Turkey. Even if this were to be disregarded due to the industrial/domestic difference and the fact that the Complainant may not necessarily be a household name, the Respondent’s biography also indicates that its family company became a prominent brand in the Turkish agricultural industry directly through the Respondent’s efforts, such that it is unlikely that the Respondent would likewise have been unaware of the Complainant’s activities in agricultural technology. Nevertheless, establishing the Respondent’s probable prior awareness of the Complainant is not enough for a finding of registration and use in bad faith. It is also necessary for the Complainant to show that, as well as having the Complainant in mind, the Respondent was motivated to target its rights in some fashion at the point of registration of the disputed domain name. The Panel’s assessment need not be restricted only to the circumstances immediately surrounding such registration itself. The manner of subsequent use of a domain name can typically help to inform the question of a respondent’s likely motivation in registering it in the first place, particularly if, as here, the use concerned is proximate to the date of registration. The Respondent argues that the disputed domain name simply represents the initials of its company name, which was not selected with the Complainant in mind. However, it is important to note that no evidence has been presented suggesting that the Respondent’s company has ever been known by these initials at any point prior to the creation date of the disputed domain name despite allegedly having a trading history of nine years. It is therefore very significant that the apparent adoption of these initials dates neither from the founding of said company nor from any intervening period in its history but rather from the comparatively recent date of July 2020 when the Respondent’s “Climask” product was likely to be in development or at least was likely to be in the Respondent’s contemplation. In the Panel’s opinion, it is reasonable to infer that, when the disputed domain name was created, the Respondent was already making plans to launch a product to be used with coolers and considered that it might gain a commercial advantage through registering a domain name that happened to consist exclusively of the Complainant’s mark in its second level, which has been long-associated with cooling devices and various innovations in the sector. The Panel is fortified in the above conclusion by the fact that the Response is lacking in detail and credibility in important respects. The Respondent has not been able to evidence the claimed activities of its company with any reasonable degree of clarity or consistency, either in the Previous Case or in response to the refiled Complaint. The Respondent has produced 2015 accounts for its company without also offering anything earlier or indeed anything more recent, despite the fact that the 2015 accounts refer to an alternative line of business not previously mentioned and do not refer to the financial services and consulting business which the disputed domain name originally promoted. The Respondent has produced an informal Response by email to the Complaint under the Policy on a second occasion, despite the fact that it was specifically drawn to its attention in the Previous Case that such a response lacks the necessary certification of accuracy and completeness required by the Rules. This means that any evidence which is produced and any accompanying submissions must be treated by the Panel with particular caution. In any event, the Panel considers the Respondent’s explanation that it forwarded the disputed domain name to its “Climask” website to avoid a 404 error (“page not found”) to be inherently implausible. The evidence indicates that there has always been content present of one sort or another, whether by way of the original site, the pay-per-click advertising site, or the default template. Said original site promoted the principal lines of business of Golden Euroasia Limited and there is no explanation as to why that page ceased to be available for display or indeed why the Respondent could not forward the disputed domain name to the corporate website listed on the “Climask” materials at “www.goldeneuroasia.com”. It is of particular note that by the time of filing of the refiled Complaint, the Respondent was seemingly content to display a default website builder template. In practical terms, that is not very different to displaying a 404 error. In Response to the refiled Complaint, the Respondent has failed to provide any details or explanation of the nature of its involvement in its family company beyond the information in the biography uncovered by the Complainant. That biography discloses a past involvement on the Respondent’s part both in cooling products and in an allegedly prominent agricultural brand, in each of which fields the Complainant is active including in the Respondent’s location. In conclusion, the Panel determines that the use of the disputed domain name to promote the “Climask” product after the Decision in the Previous Case was rendered provides evidence of registration and use in bad faith in accordance with paragraph 4(b)(iv) of the Policy. There are circumstances present indicating that the Respondent has intentionally attempted to attract Internet users to its website, for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website associated with the disputed domain name. Accordingly, the Panel finds that the third element under the Policy has been established and the refiled Complaint therefore succeeds. 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 Andrew D. S. Lothian 1 Although the “Climask” materials are silent on the question of industrial applications, the product seems mainly to be depicted in domestic settings, and there is reference to “household dust”.
- The Complainant’s products and services were sold to industrial customers.
- The Complainant did not bring forward evidence of a competing real estate or financial services consultancy and the Complainant’s financial services offering was focused on leasing the Complainant’s equipment.
- The Respondent’s denial of prior awareness of the Complainant seemed plausible. There was no evidence that the Respondent targeted the Complainant’s customers or employees, or had mimicked the Complainant’s website or actually competed with the Complainant.
- The Respondent had not hidden but had published a website with a relevant connection to the disputed domain name and appeared to have nothing to gain from attracting persons aware of the Complainant’s products.
Sole Panelist
Date: January 26, 2021
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