The Complainant is Haas Food Equipment GmbH of Wien, Austria, represented by Preslmayr Rechtsanwälte OG, Austria.
The Respondent is VistaPrint Technologies Ltd of Hamilton, Bermuda, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 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 May 6, 2015. On May 6, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 6, 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 sent an email communication to the Complainant on May 13, 2015 providing the contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 13, 2015.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 20, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 9, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 10, 2015.
The Center appointed Edoardo Fano as the sole panelist in this matter on June 12, 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.
The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties.
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a response from the Respondent.
The language of the proceeding is English, being the language of the Registration Agreement as per paragraph 11(a) of the Rules. 4. Factual Background
The Complainant is an Austrian mechanical engineering company which operates all over the world.
The Complainant owns several trademark registrations for HAAS and is operating on the Internet with the domain name since 2011.
The Complainant provided evidence in support of the above.
The disputed domain name was registered on January 2, 2015. 5. Parties' Contentions A. Complainant
The Complainant states that the disputed domain name is confusingly similar to its trademark HAAS.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it was registered with the only aim to commit fraud.
The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith, since it was registered with the only purpose to hijack an email conversation of the Complainant by using an email address including the disputed domain name, that is "[firstname.lastname]@". B. Respondent
The Respondent has made no reply to the Complainant's contentions and is in default. In reference to paragraphs 5(e) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward or are apparent from the record.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences by the panel, in accordance with paragraph 14(b) of the Rules, may be drawn (see, e.g., Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN,WIPO Case No. D2000-1080; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,WIPO Case No. D2007-0288). 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements which the Complainant must satisfy in order to succeed:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant is the owner of the trademark HAAS both by registration and acquired reputation and that the disputed domain name is confusingly similar to the trademark HAAS.
Regarding the addition of the letter "a", the Panel notes that this is a typical case of a deliberate misspelling of a mark (so-called "typo-squatting"), by adding, deleting, substituting or reversing the order of letters in a mark, where numerous panels in the past have found similarity to be present, see, inter alia, Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo,WIPO Case No. D2003-0707; CareerBuilder, LLC v. Azra Khan,WIPO Case No. D2003-0493; The Sportsman's Guide, Inc. v. Vipercom,WIPO Case No. D2003-0145; Neuberger Berman Inc. v. Alfred Jacobsen,WIPO Case No. D2000-0323.
It is well accepted that country code Top-Level Domain suffix, in this case ".co", may be ignored when assessing the confusing similarity between a trademark and a domain name, see e.g., VAT Holding AG v V,WIPO Case No. D2000-0607.
The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant's trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Respondent has failed to file a Response in accordance with the Rules, paragraph 5.
The Complainant in its Complaint and as set out above has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that the Respondent is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name.
The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that "for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that [the respondent has] registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that [the respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) that [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent's] web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [the respondent's] website or location or of a product or service on [the respondent's] web site or location."
On the basis of the evidence provided with the Complaint, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith.
The evidence shows that on January 3, 2015, the day after the registration of the disputed domain name, the Respondent was using it by creating the email address [firstname.lastname]@ to pass off as an employee of the Complainant in order to reroute a payment due to the Complainant to a different bank account.
The above strongly suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name to perpetrate fraud against the Complainant, in order to disrupt the Complainant's business, in accordance with paragraph 4(b)(iii) of the Policy.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied. 7. Decision
For all 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.
Edoardo Fano
Sole Panelist
Date: June 19, 2015
Full & Egal Universal Law Academy