The Complainant is Wort & Bild Verlag Konradshöhe GmbH & Co. KG of Baierbrunn, Germany, represented by Harald Pohl, Germany.
The Respondent is Pearson Technology Centre of Guang Zhou, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 17, 2015. On July 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 17, 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 the Respondent of the Complaint, and the proceedings commenced on August 10, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2015. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 31, 2015.
The Center appointed Michelle Brownlee as the sole panelist in this matter on September 8, 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
The Complainant is the owner of German Trademark Registration No. 993964 for the mark APOTHEKEN UMSCHAU and design in connection with printed matter in International Class 16. The registration issued in 1979.
The Domain Name was registered on February 26, 2015. 5. Parties’ Contentions A. Complainant
The Complainant is the publisher of a magazine called “Apotheken Umschau” that is provided to customers of pharmacies. The magazine has been in publication by the Complainant and the Complainant’s predecessor company since 1956. An opinion poll conducted by the German institute “Ipsos GmbH” in December 2014 determined that more than 93 percent of Germans over the age of 14 were familiar with the magazine. The Complainant sells about 9.5 million copies of the magazine to pharmacists each month. A study published by the German institute “Allensbacher Market” and Advertising Media Analysis in 2015 found that more than 28 percent of persons over the age of 14 read the magazine on a monthly basis.
The Complainant argues that the Domain Name is identical or confusingly similar to its APOTHEKEN UMSCHAU trademark. The Complainant also contends that the Respondent does not have any rights to or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith. The Complainant submits that there is no other business operating under the name “Apotheken Umschau” other than the Complainant’s magazine, and no party other than the Complainant would have a legitimate interest in using this phrase. The Complainant states that the Respondent has copied content from the Complainant’s website, which creates confusion with the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has demonstrated that it owns rights in the APOTHEKEN UMSCHAU trademark. The Panel finds that the Domain Name is confusingly similar to the Complainant’s mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights to or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
In this case, the Respondent has not presented evidence that the Respondent used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services; that the Respondent is commonly known by the Domain Name; that the Respondent is making a legitimate noncommercial or fair use of the Domain Name; or in any other way refuted the Complainant’s prima facie case.
The Complainant has presented evidence, which was not refuted by the Respondent, that the Respondent is using the Domain Name to pass itself off as related to the Complainant, by hosting a website which has copied the content of the Complainant’s website. The Panel finds that this activity cannot under the circumstances be considered a bona fide offering of goods or services. Accordingly, the Panel finds that the Respondent does not have any rights to or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
“(i) circumstances indicating that the respondent has registered or acquired the domain name at issue 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 that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its web site or location or of a product or service on its web site or location.”
From the evidence, it is unclear whether the website at the Domain Name has been used for any commercial purposes. If the Respondent is financially benefiting from its use, the Panel finds that the Respondent registered and used the Domain Name in bad faith under paragraph 4(b)(iv) of the Policy. The content posted on the web site associated with the Domain Name demonstrates that the Respondent is aware of the Complainant’s APOTHEKEN UMSCHAU trademark. Further, the Panel finds that the Respondent is using the Domain Name to attract Internet users to the Respondent’s site by creating confusion as to source by displaying the copied content from the Complainant’s website at the Domain Name. If the Respondent is not making a commercial gain, the panel finds the use of the Domain Name to be disruptive of the Complainant’s business.
Accordingly, the Panel finds that the third element of the Policy is 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 Domain Name, , be transferred to the Complainant.
Michelle Brownlee
Sole Panelist
Date: September 25, 2015
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