Complainant is Kinetic Concepts, Inc. of San Antonio, Texas, United States of America (“USA”), represented by Cox Smith Matthews Incorporated, USA.
Respondent is Sheppard Stetve of Canton, Georgia, USA. 2. The Domain Name and Registrar
The disputed domain name is registered with EuroDNS S.A. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2015. On February 11, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 12, 2015, 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 Respondent of the Complaint, and the proceedings commenced on February 13, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 5, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 20, 2015.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on March 20, 2015. 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
Complainant owns the trademark KCI, which is registered in many countries, including for example US Trademark Registration No. 2,171,342, issued July 7, 1998 in International Classes 10 and 42, with a first use in commerce in December 1977. The trademark is used in association with medical apparati for treating partially or completely immobile patients, including pressure reducing applications. Complainant also uses the KCI mark in association with its website, found at “www.m”.
The disputed domain name was registered on January 9, 2015, and routes to a website displaying sponsored advertising links, including links that read “Kci Wound VACCUUM,” “Kci VAC,” “Kci therapy,” and links to providers of medical equipment and services other than Complainant. 5. Parties’ Contentions A. Complainant
Summarizing its basic legal contentions, Complainant alleges that (1) the disputed domain name is identical or confusingly similar to Complainant’s trademarks, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy.
Complainant avers that it was contacted by a party that it alleges to have been Respondent, with a request that Complainant wire 102,000 US Dollars to a designated bank account. Complainant contends that Respondent is using the disputed domain name in a scheme to defraud Complainant, by creating an email that appeared to emanate from Complainant’s own staff and Complainant’s domain name. The email requested that Complainant’s Accounting Department make payment to a specific vendor. The copy of the email annexed to the Complaint contains messages from both the and domain names.
On the basis of the above allegations, Complainant seeks transfer. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
The Complaint must establish these elements even if Respondent does not reply. The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). A. Identical or Confusingly Similar
Although the disputed domain name is not identical to Complainant’s trademarks, the Panel agrees that the disputed domain name is confusingly similar to Complainant’s KCI trademark.
Panels usually disregard the domain name suffix in evaluating confusing similarity. E.g., VAT Holding AG v. VAT.com,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315.
The disputed domain name adopts Complainant’s trademark in its entirety, adding only the number “1.” The Panel finds that Respondent’s addition of the single number “1” does not negate the confusion created by Respondent’s complete inclusion of the KCI trademark in the disputed domain name. E.g., Sanofi-aventis, Sanofi-aventis Deutschland GmbH v. Andrey Mitrofanov,WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc.,WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner,WIPO Case No. D2006-0629.
The Panel finds therefore that the disputed domain name is confusingly similar to the registered trademarks of Complainant and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i)-(iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a domain name, after which the burden of rebuttal passes to the respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
The Panel accepts the Complaint’s undisputed allegations that Respondent has no authorization to use Complainant’s trademarks and that Respondent is not commonly known by the disputed domain name. Similarly, the Panel accepts the allegations that Respondent is not making bona fide use of the disputed domain name under the Policy.
The Complainant alleges that Respondent is using the disputed domain name in an elaborate scheme to defraud Complainant. However, the evidence submitted in support of these allegations is incomplete. In any case, the Panel finds it unnecessary to base any part of its Decision on this theory.
The Complaint also alleges that Respondent is earning revenue from the advertising links and making commercial use of the disputed domain name, as discussed below.1
The record clearly establishes that Respondent is using the website to which the disputed domain name routes to generate revenue through sponsored link advertising, which routes traffic to third parties. The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“[t]he Panel is free to infer that Respondent is likely receiving some pecuniary benefit […] in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. Montanya Ltd, WIPO Case No. D2006-1079. The Panel therefore finds that Respondent’s use of the disputed domain name demonstrates Respondent’s lack of a legitimate noncommercial interest in, or fair use of, the disputed domain name, without intent for commercial gain to misleadingly divert consumers e.g., Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784.
The Complaint makes out a prima facie case. Filing no response, Respondent has not rebutted Complainant’s prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of rights or legitimate interests in use of the disputed domain names.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration or bad faith use, is also established, as elaborated below.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and bad faith use. Policy, paragraph 4(b)(iv). See, e.g., L´Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623.
Examining the circumstances in this case, the Panel infers that Respondent was undoubtedly aware of Complainant’s KCI mark, which had been registered and enjoyed widespread international use for many years. The Panel finds that Respondent deliberately included the mark in the disputed domain name to create confusion and attract Internet users to its website for commercial gain. Therefore, the Panel concludes that Respondent registered the disputed domain name in bad faith.
Respondent’s website shows that the disputed domain name is used to promote and commercialize products and services similar to Complainant’s. The Panel concludes that this activity evidences bad faith use by Respondent. Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784 (citing Google, Inc. v. and Jimmy Siavesh Behain,WIPO Case No. D2000-1240; Casio Keisanki Kabushiki (Casio Computer Co., Ltd.) v. Jongchan Kim,WIPO Case No. D2003-0400; Downstream Technologies, LLC v. Bartels System GmbH,WIPO Case No. D2003-0088); DaimlerChrysler Corporation and DaimlerChrysler Service North America LLC v. LaPorte Holdings, Inc.,WIPO Case No. D2005-0070, (citing Royal Bank of Canada v. Henry Chan,WIPO Case No. D2003-0031).
The Panel further finds that Respondent’s failure to reply to the Complaint is cumulative evidence of use in bad faith.
Consequently, the Panel concludes that the requirements of the third element of Policy, paragraph 4(a) are fulfilled. 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 Complainant.
Jeffrey D. Steinhardt
Sole Panelist
Date: April 2, 2015
1 The Complaint (somewhat inconsistently) earlier alleges that Respondent is not in the business of using sponsored link advertising. As explained above, the Panel finds that Respondent is making commercial use of the sponsored links, therefore a number of the authorities cited by Complainant are inapposite.
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