The Complainant is Hipp & Co., Switzerland, represented by Ampersand Partnerschaft von Rechtsanwalten mbB, Germany.
The Respondent is Nikita Popov, popovagency, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2021. On June 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 22, 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 June 24, 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 amendment to the Complaint on July 2, 2021. 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 July 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 27, 2021. On July 12, 2021, the Center received a letter from a third party disclaiming any relationship to the disputed domain name. The Respondent did not submit any formal response. Accordingly, on July 30, 2021, the Center informed the Parties that it would proceed to appoint a panel. The Center appointed Adam Taylor as the sole panelist in this matter on August 9, 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 has manufactured organic food for babies and toddlers under the name “Hipp” since 1932. The Complainant owns various registered trade marks for HIPP, including European Union Trade Mark No. 008796773, filed December 15, 2009, registered February 28, 2015, in classes 3, 5, 9, 10, 11, 20, 21, and 28. The disputed domain name was registered on April 5, 2021. The disputed domain name was used for a website in German that was headed with the name and logo of Rossman, a drugstore chain, as well as with photos of the Complainant's HIPP-branded products. The website purported to offer a promotion by Rossman, whereby users could answer some questions and enter their contact details to enter a competition to win some free products of the Complainant. Users were also redirected to various offers and promotions on other websites. 5. Parties’ Contentions A. Complainant The following is a summary of the Complainant's contentions. The disputed domain name is confusingly similar to the Complainant’s trade mark. The only difference is the term “de” which refers to Germany. The Respondent lacks rights or legitimate interests in the disputed domain name because it does not possess any trade marks or any other rights that would entitle it to own the disputed domain name. The disputed domain name was registered and is being used in bad faith. The disputed domain name is being used for a fraudulent website which offers an illegal sweepstake in the name of the Complainant but whose real purpose is to collect user data and facilitate spam emails and subscriptions to other websites. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. The Complainant provided contact details of a third party apparently associated with several domain names to which the disputed domain name redirected on the basis that this entity was potentially related to the Respondent or otherwise associated with the disputed domain name. However, an attorney for the third party, sent a letter to the Center stating simply that the disputed domain name did not belong to its client, that its contracts with its clients did not allow infringement of third party trade marks, and that it was not involved in any way in the use of the disputed domain name. Noting that the UDRP Rules define a Respondent as the holder of a domain name registration against which a complaint is initiated, that the registrant details confirmed by the concerned registrar were “Nikita Popov, popovagency”, and the disclaimer of any relationship with the disputed domain name sent on behalf of the third party, the Panel considers the Respondent in the present proceedings to be “Nikita Popov, popovagency”. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: - the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; - the Respondent has no rights or legitimate interests in respect of the disputed domain name; and - the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established rights in the mark HIPP by virtue of its registered trade mark. Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that, where the relevant trade mark is recognisable within the disputed domain name, the addition of other terms, whether descriptive, geographical, or otherwise, would not prevent a finding of confusing similarity under the first element. Here, the Complainant’s distinctive trade mark is readily recognisable within the disputed domain name and, accordingly, the addition of the term “de”, denoting Germany, does not prevent a finding of confusing similarity. For the above reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests As explained in section 2.1 of WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element. Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark. Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests. As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name for phishing and/or other illicit purposes. Such use of the disputed domain name could not be said to be bona fide. Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case. The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Panel considers that by using the disputed domain name, comprising the Complainant’s trade mark plus “de”, the descriptive indicator for Germany, in conjunction with the website described above, the Respondent intended to give the impression that its website was an official promotional offer in connection with the Complainant’s goods that was authorised by the Complainant, whereas in fact the website was used for phishing and/or other illicit purposes. The Respondent has not appeared in this proceeding to deny the Complainant’s assertions. In these circumstances, the Panel readily concludes that the disputed domain name was registered and is being used in bad faith by the Respondent. The Panel concludes that the Complainant has established the third element of 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 name Adam Taylor
Sole Panelist
Date: August 23, 2021
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