The Complainant is Galvin Green AB of Växjö, Sweden, represented by Advokatbyrån Gulliksson AB, Sweden.
The Respondent is Stephen Galvin - Galvin Green of London, United Kingdom of Great Britain and Northern Ireland (“UK”). 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2013. On June 25, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 27, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 17, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 18, 2013.
The Center appointed Torsten Bettinger as the sole panelist in this matter on July 26, 2013. 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 designs and produces a wide range of sportswear particularly tailored to suit the needs of golf players and enthusiasts. The Complainant has conducted business since the 1990s, and has provided copies of its numerous trademark registrations for the GALVIN GREEN mark, including International Registration No. 688001 (word mark GALVIN GREEN), registered on February 25, 1998, and Community Trademark No. 000366658 (figurative mark GALVIN GREEN in stylized text), registered on March 10, 1999.
The disputed domain name was registered on July 22, 2010, and was formerly used to redirect users to a website at “.” At the present time, the disputed domain name displays a pay-per-click (PPC) landing page with sponsored links to, inter alia: “Ralph Lauren RXL Golf”, “Golf Singles Dating”, “Ladies Golf Wear”, “Coupons Golf”, “Golf Packages”, “Galvin Green Golf Clothes”, “Bobby Jones Golf Apparel”, Golf Apparel Mens”, and “Golf Shoes.”
Although the Respondent elected not to file any reply in these proceedings (despite due and proper notification by the Center, in accordance with the Policy and Rules), the Complainant noted in its pleadings that, in prior correspondence between the parties the Respondent had asserted that “Galvin” was his legal last name. He further claimed (apparently without any substantiating evidence) that “Green” was his mother’s maiden name, and that this led him to select the combined names as a domain name. No further evidence in this regard has been provided, and indeed, the Respondent has elected to offer no such claims or substantiating proof in the course of these proceedings. 5. Parties’ Contentions A. Complainant
The Complainant states that each of the three elements of paragraph 4(a) of the Policy is satisfied.
With regard to the first element of the Policy, the Complainant states that the disputed domain name is identical to its registered GALVIN GREEN mark, since the country code Top-Level Domain (ccTLD) designation “.co” is not taken into account in assessing identity or confusing similarity.
Concerning the second element of the Policy, the Complainant notes that the Respondent has not been authorized to use the Complainant’s mark in any fashion, and that the Respondent is in no way connected to the Complainant’s business activities. Noting that the “registrant organization” field in the WhoIs records for the disputed domain name lists “Galvin Green,” the Complainant claims that there is no company in the UK which trades under that name, except for the Complainant’s own branch division - Galvin Green (UK) Ltd. The Respondent formerly re-directed the disputed domain name to a website offering unrelated goods, after attracting Internet users via the inclusion of its GALVIN GREEN mark, which does not constitute a bona fide offering of goods or services. Additionally, the Complainant notes that the website to which the disputed domain name redirects is commercial in nature, and accordingly the Respondent either receives revenue directly from sales made on the website or, at the very least, via referral fees.
Finally, with regard to the third element of the Policy, the Complainant notes that the Respondent appears to have no connection whatsoever to the country of Colombia, and suggests that the disputed domain name was selected only to trade on mis-directed traffic from the Complainant’s main website at “www.m”. Moreover, the Complainant states that the Respondent “was [in] all likelihood aware of, and had the Complainant’s distinctive mark in mind when registering the disputed domain name.” The Complainant further notes that the use of the disputed domain name in connection with a commercial website constitutes evidence of bad faith registration and use under the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone, independent of the products for which the domain name is used or other marketing and use factors usually considered in trademark infringement. See F. Hoffmann-La Roche AG v. P Martin,WIPO Case No. D2009-0323; BWT Brands, Inc and British American Tobacco (Brands), Inc v. NABR,WIPO Case No. D2001-1480; and Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,WIPO Case No. D2000-1698.
It is also well established that a ccTLD suffix, such as “.co”, is generally held to be irrelevant for the purposes of determining identity or confusing similarity under the Policy. See Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
The Panel thus finds that the disputed domain name is confusingly similar to the Complainant’s GALVIN GREEN mark and that the Complainant has established the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. However, it is the consensus view among WIPO UDRP panelists that if the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack rights or legitimate interests in the domain name and the complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy. See Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant confirms that it has not licensed or authorized the Respondent to use its GALVIN GREEN mark in any fashion and that there is no connection between the Respondent and the Complainant. The disputed domain name was formerly used to redirect Internet users to a web shop selling chocolates, from which the Respondent apparently derived commercial benefit (either directly or via referral fees). The use of a domain name to garner revenue on the basis of Internet user confusion, through the incorporation of a complainant’s trademark, does not constitute a bona fide commercial offering for purposes of the Policy. See Harry Winston Inc. and Harry Winston, S.A. v. Harry Pluviose,WIPO Case No. D2010-0210 and La Quinta Worldwide, L.L.C. v. VALUE-DOMAIN COM/Value Domain,WIPO Case No. D2012-0005. Moreover, the disputed domain name currently (and at the time the Center conducted its formal compliance review of the Complaint) directs Internet users to a PPC website offering links to products competitive with those of the Complainant, which is likewise not consistent with bona fide business activity.
There is some question in this matter, however, as to whether or not the Respondent is commonly known as “Galvin Green.” The name of the Respondent in the WhoIs records is “Stephen Galvin,” with a corresponding organization name of “Galvin Green.” That said, however, there is no further information about the validity of these details, as the Respondent has not elected to enter any arguments or evidence on his own behalf. The mere fact that the Respondent’s name is “Stephen Galvin”, with a corresponding organization name of “Galvin Green”, if indeed the information entered in the WhoIs data is correct, does not per se entitle him to use the Complainant’s GALVIN GREEN mark in a manner designed to capitalize on Internet user confusion for his own gain. There is nothing in the record to suggest that the Respondent has any connection to the full text of the disputed domain name, namely “galvin green,” nor to indicate that he conducts bona fide business under the term. In this Panel’s view, the registration details of the disputed domain name and the Respondent’s unsubstantiated claims in prior correspondence between the parties are not sufficient to suggest otherwise.
The Panel notes in this regard that the Respondent was provided with proper notice of the dispute, and that the Center fully and completely discharged its duty to transmit the Complaint and case-related documents to the Respondent. It is the Panel’s view that, if the Respondent had any information or arguments to offer in his own defense, he would logically have taken the opportunity to do so in the course of these proceedings. In the absence of any evidence to support a claim for a right or legitimate interest, and no reply whatsoever from the Respondent, the Panel concludes that the Respondent had no justification for his selection of the disputed domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) is also satisfied. C. Registered and Used in Bad Faith
The Complainant has been in business for over a decade, and has maintained registered rights in its GALVIN GREEN mark since as early as 1998, roughly twelve years before the disputed domain name was registered. The Complainant is active in the golf- and sports-wear industry, which the Respondent has lately capitalized upon (through the generation of PPC revenue) via the disputed domain name. The Complainant’s primary domain name, , differs from the disputed domain name only in the selection of the top-level extension, indicating that the Respondent was likely aware of the potential for Internet user confusion. Therefore, in the Panel’s view, it is more probable than not that the Respondent was aware of the Complainant at the time he selected the disputed domain name for registration.
As noted above, the disputed domain name has redirected both to an online web shop and to a PPC landing page with sponsored links related to the Complainant’s activities. Thus, the Respondent has presumably derived either sales profits or referral revenue via these websites. Such activity constitutes evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy. See La Quinta Worldwide, supra.
Accordingly, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy has also been met. 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 be transferred to the Complainant.
Dr. Torsten Bettinger
Sole Panelist
Date: August 8, 2013
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