The Complainant is smava GmbH, Germany, internally represented.
The Respondent is Anna Brunner, Benin.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 7, 2021. On December 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 8, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 10, 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 December 15, 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 December 22, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 11, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 13, 2022.
The Center appointed Ian Lowe as the sole panelist in this matter on February 7, 2022. 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 BackgroundThe Complainant is a German company that has operated a website at “www.smave.de”, comprising one of the leading loan comparison portals in Germany, since 2006. Users make an initial enquiry about a loan, receive offers through the portal from German banks and then complete their application online, again using the portal. The application process requires users to submit detailed personal information for identification purposes.
The Complainant is the proprietor of a number of registered trademarks comprising the SMAVA mark, including Germany trademark number 30562188 SMAVA registered on December 22, 2005, and Germany trademark number 302013008339 “smava” and device mark (the “Smava Device Mark”) registered on February 4, 2014.
The Domain Name was registered on November 9, 2021. It does not presently resolve to an active website. However, the Complainant alleges that at the time of preparation of the Complaint, before the website at the Domain Name was taken down by the Registrar at the Complainant’s behest, the Domain Name resolved to a website that was a substantial copy of the Complainant’s website. The Respondent’s website featured the Complainant’s SMAVA trademark and Smava Device Mark (together the “Smava Marks”) and mirrored the majority of the content of the Complainant’s website.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to its SMAVA trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of the Policy.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsFor this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name 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 has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Complainant has uncontested rights in the SMAVA mark, both by virtue of its trademark registrations and as a result of the substantial goodwill and reputation acquired through its use of the Smava Marks over some 15 years. Ignoring the generic Top-Level Domain (“gTLD”) “.online”, the Domain Name is identical to the SMAVA mark. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. The Respondent is not authorized by the Complainant to use the Domain Name. The Respondent has not used the Domain Name in connection with a bona fide offering of goods or services, but rather has used it, on the Complainant’s case, to connect to a website comprising a substantial copy of a website of the Complainant. In light of the nature of the Domain Name, identical to the SMAVA mark and in the Panel’s view likely only to be associated with the Complainant, the Panel cannot conceive of any legitimate use to which the Respondent could put the Domain Name.
The Respondent has chosen not to respond to the Complaint or to take any steps to counter the prima facie case established by the Complainant. In these circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad FaithIn this case, as noted above, the Panel cannot conceive of any good faith use to which the Domain Name could be put. The Complainant alleges that the Respondent has used the Domain Name for a website comprising a substantial copy of the Complainant’s website including use of the Smava Marks. Unhelpfully, the Complaint does not include screenshots of the Respondent’s website before it was taken down by the Registrar. However, the Panel takes into account the failure of the Respondent to reply to the Complainant’s contentions.
The Panel also notes that the address for the Respondent as disclosed by the WhoIs data held by the Registrar is self-evidently false. Although the address claims to be one in the Department of Plateau in the African State Benin, the street address comprises a number identical to the given postal code and a German city and the city address is another German city. The registrant phone number appears to be a German mobile phone number. Panels have consistently held that providing false contact information is an indication of bad faith.
The obvious inference is that the Respondent has used the Domain Name to resolve to a website comprising a substantial copy of the Complainant’s own website, incorporating therefore the Smava Marks, in order to deceive Internet users into believing that the Domain Name is operated or authorized by the Complainant. It no doubt did so with a view to attracting Internet users, by creating a likelihood of confusion with the SMAVA mark, for commercial gain and/or to phish for personal data for improper purposes. In the Panel’s view, this amounts to paradigm bad faith registration and use.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Ian Lowe
Sole Panelist
Date: February 21, 2022