Complainant is Diaverum Sweden AB of Stockholm, Sweden (hereinafter “Complainant”), represented by SILKA Law AB, Sweden.
Respondent is Jonathan Johnson of St Albans, Herts, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). 2. The Domain Name and Registrar
The disputed domain name is registered with Key-Systems GmbH dba (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 14, 2017. On July 17, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 18, 2017, the Registrar transmitted by email to the Center its verification response confirming that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 9, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 10. 2017.
The Center appointed M. Scott Donahey as the sole panelist in this matter on August 11, 2017. 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 is a large independent provider of renal care, currently operating in 20 countries located in Europe, Latin America, the Middle East, and Australia. Complainant has its corporate office in Lund, Sweden. Complaint, Annex 3. Complainant is the registrant of the mark DIAVERUM in several jurisdictions, including in the United Kingdom, which registration issued on December 26, 2008 (trademark no. UK00002475376), and in the European Union, one of which registrations issued on September 10, 2008 (trademark no. 006339363). Complaint, Annex 4. Complainant also has registered domain names which incorporate the DIAVERUM mark, for example and which Complainant uses to resolve to websites which it uses to inform the public about the services which it offers. Complaint, Annex 5.
Respondent registered the disputed domain name on September 27, 2016. Complaint, Annex 1. Respondent uses the disputed domain name to resolve to an inactive site which has been constructed for or which has been used for the transmission of emails. The registration lists as the contact person the name of one of Complainant’s former employees, who denies any affiliation or involvement with the disputed domain name, its registration, or its use. A test email was sent and a bounce email was received indicating that the email on the site was not operational. Complaint, Annex 7. 5. Parties’ Contentions A. Complainant
Complainant contends that as the disputed domain name consists of Complainant’s registered service mark DIAVERUM and the appended suffixes “.” (the commercial suffix and the country code suffix), the disputed domain name is confusingly similar to Complainant’s registered service mark. Complainant alleges that it has never licensed, sold, granted, transferred, or in any way authorized Respondent to use its registered service mark, and Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant contends that Respondent’s failure to make any legitimate use of the disputed domain name but rather simply to hold the name or use it in conjunction with email transmissions and receipts, coupled with Respondent’s provision of false and misleading contact information to the Registrar constitutes bad faith registration and use of the disputed domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:
“A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
2) that the respondent has no rights or legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the use of Complainant’s unusual service mark as the distinguishing element in the disputed domain name means that the disputed domain name is confusingly similar, if not identical, to Complainant’s service mark. B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”),
In the present case Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
Respondent has provided false contact information to the Registrar. Respondent has used the website, if at all, for the purpose of transmitting emails. Respondent registered Complainant’s distinctive service mark as the sole distinguishing element in the disputed domain name, and Respondent was never authorized by Complainant to use the mark in any way. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 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.
M. Scott Donahey
Sole Panelist
Date: August 14, 2017
Full & Egal Universal Law Academy