The Complainant is IIC-INTERSPORT International Corporation GmbH, Switzerland, represented by Bourgeois Avocats SA, Switzerland.
The Respondent is Eduard Voiculesxu, Romania. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2021. On April 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 7, 2021, 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 April 14, 2021 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 April 16, 2021. 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 Respondent of the Complaint, and the proceedings commenced on April 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2021. The Center appointed Gabriela Kennedy as the sole panelist in this matter on May 21, 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 part of the Intersport GmbH, a leading sporting goods retailer based in Switzerland, which has a presence in 5,800 locations and in 65 countries. The Complainant is the owner of several trade mark registrations for the INTERSPORT mark in various jurisdictions, including, inter alia, the European Union Trade Mark INTERSPORT (Reg. No. 000296574) filed on on June 25, 1996 and registered on July 22, 2004; the International trade mark INTERSPORT (Reg. No. 610368) registered on October 1, 1993, and the International trade mark INTERSPORT (Reg. No. 1470937) registered on June 18, 2018. The Disputed Domain Name was registered on February 2, 2021. The Disputed Domain Name resolves to a website that sells various sporting goods including sports shoes and apparel. 5. Parties’ Contentions A. Complainant The Complainant’s primary contentions can be summarised as follows: (a) The Disputed Domain Name is confusingly similar to the Complainant’s INTERSPORT trade mark. The Disputed Domain Name incorporates the Complainant’s INTERSPORT trade mark in its entirety with the addition of the suffix “co”, which does not sufficiently distinguish the Disputed Domain Name from the Complainant’s INTERSPORT trade mark. The addition of the suffix “co” in fact suggests that the website to which the Disputed Domain Name relates is owned and operated by an affiliate company under the Complainant’s corporate group. (b) The Complainant and its INTERSPORT trade mark are widely known, especially in European countries, and therefore the Respondent must have been aware of the Complainant and its INTERSPORT trade mark when registering the Disputed Domain Name. (c) The Disputed Domain Name was registered and is being used in bad faith as the website to which it resolves reproduces the same colors of the Complainant’s logo and trademark and is offering sporting products for sale, which are in direct competition with the Complainant’s main business as a sporting goods retailer. The Respondent attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s INTERSPORT trade mark. B. Respondent The Respondent did not reply to the Complainant’s contentions. The fact that the Respondent has not submitted a formal Response does not automatically result in a decision in favour of the Complainant. However, the Respondent’s failure to file a Response may result in the Panel drawing appropriate inferences from such default. The Panel may also accept all reasonable and supported allegations and inferences flowing from the Complainant as true (see Entertainment Shopping AG v. Nischal Soni, Sonik Technologies,WIPO Case No. D2009-1437 and Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000-0403). 6. Discussion and Findings Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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 by the Respondent in bad faith. A. Identical or Confusingly Similar The Panel accepts that the Complainant has rights in the INTERSPORT trade mark, based on its various trade mark registrations. It is well established that in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the Top-Level Domain extension (“.com” in this case) may be disregarded. See section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Disputed Domain Name incorporates the Complainant’s INTERSPORT trade mark in its entirety with the addition of the suffix “co”. UDRP panels have consistently found that the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) to a mark will not alter the fact that the domain name at issue is confusingly similar to the mark in question. See section 1.8 of the WIPO Overview 3.0. The mere addition of the “co” suffix does not prevent the Complainant’s INTERSPORT trade mark from being clearly recognisable in the Disputed Domain Name, and therefore does not prevent a finding of confusing similarity between the Disputed Domain Name and the Complainant’s INTERSPORT trade mark. As such, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s INTERSPORT trade mark, and accordingly, paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests Once a complainant establishes a prima facie case in respect of the lack of rights or legitimate interests of a respondent in a disputed domain name, the respondent then carries the burden of demonstrating that it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See section 2.1 of the WIPO Overview 3.0. The Panel finds that the Complainant has not authorised the Respondent to use the INTERSPORT trade mark, and there is no relationship between the Complainant and the Respondent, which would otherwise entitle the Respondent to use the INTERSPORT trade mark. Accordingly, the Panel is of the view that a prima facie case has been established by the Complainant and it is for the Respondent to show rights or legitimate interests in the Disputed Domain Name. As the Respondent has not submitted a Response, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainant’s evidence. Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Name by demonstrating any of the following: (i) before any notice to him 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 was in connection with a bona fide offering of goods or services; (ii) the Respondent has been commonly known by the Disputed Domain Name, even if he has acquired no trade mark 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 trade mark or service mark at issue. There is no evidence to suggest that the Respondent’s use of, or demonstrable preparations to use the Disputed Domain Name or a name corresponding to the Disputed Domain Name was in connection with a bona fide offering of goods or services. The Respondent’s use of the Disputed Domain Name cannot be regarded as legitimate noncommercial or fair use as the Disputed Domain Name resolves to a website that offers sporting goods for sale and displays a logo that strongly resembles the Complainant’s registered figurative mark. Such use of the Disputed Domain Name gives a false impression that the Disputed Domain Name is associated with and/or endorsed by the Complainant and is capable of misleading and diverting visitors, and tarnishing the Complainant’s INTERSPORT trade mark. In addition, there is no evidence to prove that the Respondent has trade mark rights corresponding to the Disputed Domain Name, or that he has become known by the Disputed Domain Name. Furthermore, the nature of the Disputed Domain Name, comprising the Complainant’s INTERSPORT trade mark and additional term “co”, carries a risk of implied affiliation and cannot constitute fair use as it effectively impersonates or suggests sponsorship or endorsement by the Complainant in these circumstances. See section 2.5.1 of the WIPO Overview 3.0. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith UDRP panels have consistently found that the mere registration of a domain name that is confusingly similar to a widely-known trade mark by an unaffiliated entity (particularly domain names which incorporate a mark plus a descriptive term) can already by itself create a presumption of bad faith. See section 3.1.4 of the WIPO Overview 3.0. The Complainant’s INTERSPORT trade mark appears to be fairly well-known. A quick Internet search shows that the top search results returned for “intersport” are the Complainant’s official website and social media sites, and several third party websites making references to the Complainant’s products and services. Therefore, the Respondent must have been aware of the Complainant and its rights in the INTERSPORT trade mark when registering the Disputed Domain Name. The fact that the Disputed Domain Name incorporates the Complainant’s INTERSPORT trade mark in its entirety also creates a presumption of bad faith in these circumstances. In addition, the Panel finds that the following factors further support a finding that the Disputed Domain Name was registered and is being used by the Respondent in bad faith: (i) the Respondent failed to respond to the Complainant’s contentions and has provided no evidence of any actual or contemplated good faith use by it of the Disputed Domain Name; (ii) it is difficult to conceive of any plausible use of the Disputed Domain Name that would amount to good faith use, given that the Disputed Domain Name is confusingly similar to the Complainant’s INTERSPORT trade mark, any use of the Disputed Domain Name would likely mislead Internet users into believing the Disputed Domain Name is associated with and/or endorsed by the Complainant, thus attracting Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with the Complainant’s INTERSPORT trade mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website; (iii) the Disputed Domain Name resolves to a website offering sporting goods for sale, using a color scheme similar to the Complainant’s logo and trademark, which is in direct competition with the Complainant’s main business as a sporting goods retailer; and (iv) the absence of a disclaimer on the Respondent’s website explaining the relationship (or lack thereof) between the Respondent and the Complainant. In the circumstances, the Panel finds that the Respondent registered and has been using the Disputed Domain Name in bad faith, and paragraph 4(a)(iii) of the Policy has been satisfied. 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 Gabriela Kennedy
Sole Panelist
Date: June 4, 2021
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