The Complainant is Haglöfs AB, with an office in Avesta, Sweden.
The Respondent is Acuic Ckbi, with an address in Singapore. 2. The Domain Name and Registrar
The disputed domain name is . It is registered with GoD, LLC (the "Registrar"). 3. Procedural History
According to the information and documents provided by the WIPO Arbitration and Mediation Center (the "Center"), the history of this proceeding is as follows:
- The Complaint was filed with the Center on December 11, 2017.
- On December 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 12, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's 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 sent a Notification of the Complaint to the Respondent, and this proceeding commenced on December 22, 2017. The Notification advised the Respondent that, in accordance with Rules paragraph 5, the due date for a Response was January 11, 2018.
- The Center sent a Notification of the Complaint to the Respondent by email to several registrar-confirmed email addresses, including the Respondent's email address specified in the WhoIs database for the disputed domain name, and by courier to the Respondent's postal address specified in the WhoIs database for the disputed domain name. The Center also submitted a brief notice of the Complaint using a form on the Respondent's "www." website. The Notification of the Complaint sent by email to the Respondent's email address specified in the WhoIs database for the disputed domain name appears to have been successfully delivered. The Notification of the Complaint sent by email to the Respondent's other email address was not successfully delivered. The Notification of the Complaint sent by courier was not delivered because the Respondent's postal address in the WhoIs database was not valid. The brief notice of the Complaint submitted using a form on the Respondent's "www." website was rejected by the website.
- The Respondent did not file a Response by the specified due date or at any time thereafter.
- On January 12, 2018, the Center sent a Notification of Respondent Default to the Respondent by email to the Respondent's email address specified in the WhoIs database for the disputed domain name.
- The Center appointed Bradley J. Freedman as the sole panelist in this proceeding on January 25, 2018. The Panel submitted a Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with Rules paragraph 7.
Based on the information and documents in the case file, the Panel finds that the Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules, and that all technical requirements for this proceeding have been met.
The language of the registration agreement for the disputed domain name is English. Consequently, the language of this proceeding is English. (See Rules paragraph 11(a).) 4. Factual Background
The following information is derived from the Complaint and supporting evidence (including the WhoIs search results for the disputed domain name) submitted by the Complainant, and the Panel's review of the website to which the disputed domain name resolves (as described below):
- The Complainant is a Swedish company that manufactures and sells outdoor gear and clothing.
- The Complainant owns the trademarks HAGLÖFS and HAGLOFS, which are registered for use in associated with various kinds of outdoor gear and clothing in Canada (TMA591135, registered on September 30, 2003), the United States of America (No. 2710590, registered on April 29, 2003), Sweden (No. 340699, registered on September 22, 2000) and the European Union (No. 001406719, registered on April 3, 2001). The Complainant also owns a trademark comprised of a stylized H design, which is registered in the European Union (No. 001406701, registered on May 8, 2001).
- The Complainant operates its official website and online store using the domain name .
- The disputed domain name was registered on July 8, 2017.
- The disputed domain name resolves to a website that appears similar to the Complainant's official website. The website displays the Complainant's name and stylized H design trademark, and purports to advertise and sell, through online e-commerce functionality, the Complainant's authentic products bearing the Complainant's HAGLOFS trademark. The "About Us" page of the website provides a history of the Complainant's business and products. The website Privacy Policy purports to describe the Complainant's privacy practices. The website FAQs purport to be about the Complainant.
- On or about October 13, 2017, the Complainant's representative sent by email, to the Respondent's email address specified in the WhoIs database for the disputed domain name, a cease-and-desist letter objecting to the Respondent's website and unauthorized use of the Complainant's HAGLOFS trademarks, and demanding that the Respondent promptly transfer the disputed domain name to the Complainant. The Complainant's representative did not receive a reply to that letter.
- On or about November 16, 2017, the Complainant's representative sent a follow-up email to the Respondent at the same email address.
- The Complainant's representative did not receive a reply from the Respondent before the Complainant filed the Complaint, but the Respondent's website was shut down.
- The Respondent has not filed a Response to the Complaint or disputed the Complainant's factual assertions or evidence in any other manner.
On its own initiative, the Panel reviewed the website to which the disputed domain name resolves in order to view the content and functionality of the website. The website is active and appears similar to an official HAGLOFS website. The Panel's review of the website is consistent with the consensus view that a UDRP panel may undertake limited factual research into matters of public record, including accessing the website linked to a disputed domain name, if the panel considers it useful to assessing the case and reaching a decision. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.8. 5. Parties' Contentions A. Complainant
The Complainant contends as follows:
- The Complainant is the owner of the HAGLOFS trademark registered and used in various countries in association with outdoor gear and clothing, and the disputed domain name is identical or confusingly similar to the HAGLOFS trademark.
- The Respondent has no rights or legitimate interests in respect of the disputed domain name, and does not have any right to use the Complainant's HAGLOFS trademark.
- The Respondent registered and is using the disputed domain name in bad faith because the Respondent is using the disputed domain name for a website that uses the Complainant's trademarks and purports to sell the Complainant's authentic branded gear and clothing. B. Respondent
The Respondent has not filed a Response to the Complaint or answered the Complainant's contentions in any other manner. 6. Discussion and Findings
The Policy is narrow in scope. It applies only to disputes involving alleged bad faith registration and use of domain names – conduct commonly known as "cybersquatting" or "cyberpiracy". The Policy does not apply to any other kind of dispute between a trademark owner and a domain name registrant.
The application of the Policy is limited to situations in which a complainant asserts and proves the following requirements set out in Policy paragraph 4(a): (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) the registrant has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. The burden is on a complainant to prove all three required elements in order to be entitled to relief under the Policy.
Rules paragraph 10(b) requires that the Panel ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case. The Center discharged its responsibility under Rules paragraph 2(a) to employ reasonably available means calculated to give the Respondent actual notice of the Complaint. The Respondent cannot hide behind a failure to provide accurate and complete contact information to the Registrar. In the circumstances, the Panel finds that the Respondent has been given notice of this proceeding in accordance with Rules paragraph 2 and has been given a fair opportunity to answer the Complaint and present its case. In accordance with Rules paragraph 14(a), the Panel will proceed to a decision on the Complaint.
The Respondent's failure to file a Response to the Complaint does not automatically result in a decision in favor of the Complainant. The Complainant must still prove each of the three elements required by Policy paragraph 4(a). Rules paragraph 15(a) requires the Panel to decide the Complaint 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 the Panel deems applicable. In accordance with Rules paragraph 14(b), the Panel may draw inferences as the Panel considers appropriate from the Respondent's failure to file a Response to the Complaint (see WIPO Overview 3.0, section 4.3). In the circumstances, the Panel's decision is based on the Complainant's assertions and evidence, information obtained by the Panel as a result of the Panel's review of the website to which the disputed domain name resolves, and inferences drawn from the Respondent's failure to file a Response, all as set out in this decision. A. Identical or Confusingly Similar
The Complainant is the owner of the HAGLOFS trademark registered in numerous countries throughout the world many years before the disputed domain name was registered. The Respondent has not contested the Complainant's assertions. In the circumstances, the Panel finds that the Complainant has rights in the HAGLOFS trademark.
The Policy requires that the disputed domain name be "identical or confusingly similar" to the Complainant's trademark. Neither the Policy nor the Rules provide any explicit guidance with respect to the test to be applied regarding the confusing similarity requirement of the Policy. The consensus reflected in previous UDRP decisions is that the appropriate test for confusing similarity is a literal comparison of the domain name in dispute and the complainant's trademark. See WIPO Overview 3.0, section 1.7. The literal comparison approach is supported by a number of considerations, which have been discussed in various UDRP decisions. See Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,WIPO Case No. D2000-1698; Consitex S.A., Lanificio Ermenegildo Zegna & Figli S.p.A., Ermenegildo Zegna Corporation v. Ms. Patricia Chung,WIPO Case No. D2004-0490; Pancil, LLC v. Wan-Fu China, Ltd.,WIPO Case No. D2007-0492; Highlights for Children, Inc. v. Services LLC,WIPO Case No. D2007-0337; Scania CV AB (Publ) v. ScaniaF,WIPO Case No. D2008-0113. For those reasons, the Panel considers the appropriate test for confusing similarity to be a literal comparison of the disputed domain name and the Complainant's HAGLOFS trademark.
The disputed domain name is comprised of the Complainant's HAGLOFS trademark and the ".co" suffix. The suffix is typically disregarded for the purpose of determining whether a domain name is identical or confusingly similar to a trademark, because the suffix is a registration requirement and does not distinguish the domain name from the relevant trademark. See WIPO Overview 3.0, section 1.11.
Nevertheless, the disputed domain name appears to be a purposeful misspelling of the Complainant's official domain name (.co instead of .com), and the Respondent is using the disputed domain name to resolve to a deceptive, commercial website that appears intended to mislead Internet users who are looking for the Complainant's official website to purchase the Complainant's authentic products. See WIPO Overview 3.0, section 1.9.
For those reasons, the Panel finds that the disputed domain name is identical to the Complainant's HAGLOFS trademark. Accordingly, the Panel finds that the Complainant has satisfied the first element required by the Policy. B. Rights or Legitimate Interests
The second element required by Policy paragraph 4(a) – the registrant has no rights or legitimate interests in respect of the domain name – requires a complainant to prove a negative proposition, which can be particularly difficult. The consensus reflected in previous UDRP decisions is that a complainant's burden of proof regarding this element must be applied in light of the fact that the nature of the registrant's rights or legitimate interests, if any, in a domain name lies most directly within the registrant's knowledge. As a practical matter, once a complainant makes a prima facie showing that a registrant does not have rights or legitimate interests in a domain name, the evidentiary burden shifts to the registrant to provide evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (1) the Complainant has not found any evidence that the Respondent is commonly known by the term "haglofs"; (2) the Respondent is not affiliated with the Complainant and the Complainant has not approved the Respondent's use of the disputed domain name; (3) the Respondent is not using the disputed domain name for a bona fide offering of goods and services, but rather for a deceptive, commercial website that uses the Complainant's trademarks to advertise and sell products bearing the Complainant's trademarks.
Except for the assertions in the signed and certified Complaint, the Complainant has not provided any evidence of trademark, trade name or company name searches or other investigations to indicate that the Respondent does not have any interest in any mark that includes the term "haglofs" and is not commonly known as "Haglofs". In some circumstances, the omission of that evidence might be fatal to a complaint under the Policy. Nevertheless, in the circumstances of this case (including the name of the Respondent, the distinctive nature of the Complainant's registered HAGLOFS trademark and evidence of the Respondent's use of the disputed domain name), the signed and certified Complaint together with an adverse inference from the Respondent's failure to respond to the Complaint or provide any justification for the registration and use of the disputed domain name are sufficient to satisfy the Complainant's evidentiary burden.
Even though the Respondent has not filed a Response to the Complaint and has not contested the Complainant's assertions, the Panel is obligated to consider whether the Respondent's use of the disputed domain name demonstrates rights or legitimate interests in the disputed domain name. See WIPO Overview 3.0, section 4.3.
According to Policy paragraph 4(c), each of the following circumstances, if proved, demonstrate a registrant's rights to or legitimate interests in a domain name: (i) the registrant used or demonstrably prepared to use the domain name or a corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute; (ii) the registrant (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or (iii) the registrant 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 complainant's mark.
Policy paragraph 4(c)(i) is not applicable. To satisfy the requirements of Policy paragraph 4(c)(i), the Respondent's use of the disputed domain name must be in connection with a bona fide offering of goods or services (see WIPO Overview 3.0, sections 2.2 and 2.13). In this case, the Respondent's use of the disputed domain name is not bona fide within the meaning of Policy paragraph 4(c)(i) because:
- the disputed domain name is identical to the Complainant's registered HAGLOFS trademark, which has been used for many years;
- there is no apparent connection or relationship between the disputed domain name and the name or business of the Respondent; and
- the Respondent does not use the disputed domain name to advertise or sell the Respondent's own wares or services, but rather the Respondent uses the disputed domain name for a deceptive, commercial website that uses the Complainant's trademarks and appears intended to mislead Internet users who are looking for the Complainant's official website to purchase the Complainant's authentic products.
Policy paragraph 4(c)(ii) is not applicable. The Respondent does not contend, and there is no evidence, that the Respondent has been commonly known by the disputed domain name or that the disputed domain name is derived from the Respondent's trademarks or trade names.
Policy paragraph 4(c)(iii) is not applicable. The Respondent does not contend, and there is no evidence, that the Respondent is making a noncommercial or fair use of the disputed domain name. To the contrary, the evidence establishes that the Respondent uses the disputed domain name for a deceptive, commercial website that uses the Complainant's trademarks and appears intended to mislead Internet users who are looking for the Complainant's official website to purchase the Complainant's authentic products.
For those reasons, the Panel finds that the Respondent does not have any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Policy paragraph 4(a)(iii) requires the Complainant to prove that the Respondent registered and is using the disputed domain name in bad faith. The language of Policy paragraph 4(a)(iii) is conjunctive and requires the Complainant to prove both bad faith registration of the disputed domain name and bad faith use of the disputed domain name.
"Bad faith" within the meaning of the Policy is a term of art, and is not intended to apply to distasteful conduct that might constitute bad faith in the ordinary sense of the term. Policy paragraph 4(b) provides that each of the following circumstances is evidence that a registrant has registered and is using a domain name in bad faith:
(i) circumstances indicating that the registrant 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 the registrant's documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant 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 registrant has engaged in a pattern of such conduct; or
(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant's website 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 registrant's website or location or of a product or service on the registrant's website or location.
The Policy expressly states that those circumstances are non-exhaustive. To establish that a registrant registered and is using a domain name in bad faith, a complainant need only establish one of the four non‑exhaustive criteria set out in Policy paragraph 4(b).
The Complainant relies on Policy paragraph 4(b)(iv), which applies if the Complainant establishes that the Respondent registered and is using the disputed domain name to confuse and divert Internet users to the Respondent's website for commercial gain.
The Panel finds that the Respondent knew of the Complainant and the Complainant's HAGLOFS trademark when the Respondent registered the disputed domain name, and the Respondent registered and is using the disputed domain name to confuse and divert Internet users to the Respondent's website, based on the following circumstances:
- The disputed domain name is identical to the Complainant's registered HAGLOFS trademark, which had been used for many years before the disputed domain name was registered.
- There is no apparent connection or relationship between the disputed domain name and the Respondent or the Respondent's business, wares or services.
- The Respondent uses the disputed domain name for a deceptive, commercial website that uses the Complainant's trademarks and appears intended to mislead Internet users who are looking for the Complainant's official website to purchase the Complainant's authentic products.
- There is no apparent legitimate justification for the Respondent's registration and use of the disputed domain name.
In addition, the Panel draws an adverse inference from the Respondent's failure to provide any explanation or rationale for the registration or use of the disputed domain name.
For those reasons, pursuant to Policy paragraph 4(b)(iv), the Panel finds that the Respondent registered and is using the disputed domain name in bad faith to confuse and divert Internet users to the Respondent's website for commercial gain.
The Panel also finds that the Respondent is engaged in typosquatting, by attempting to take advantage when an Internet user seeking to access the Complainant's official website at "www.m" inadvertently types the incorrect address "www.".
In the circumstances, the Panel need not consider whether any of Policy paragraphs 4(b)(i), (ii) or (iii) are applicable, or whether there are other grounds for finding that the Respondent registered and is using the disputed domain name in bad faith. 7. Decision
The Complainant has established each of the three requirements set out in Policy paragraph 4(a): (i) the disputed domain name is identical to the Complainant's HAGLOFS trademark; (ii) the Respondent does not have any rights to or legitimate interests in the disputed domain name; and (iii) the Respondent registered and is using the disputed domain name in bad faith.
For those reasons, in accordance with Policy paragraph 4(i) and Rules paragraph 15, the Panel orders that the disputed domain name be transferred to the Complainant.
Bradley J. Freedman
Sole Panelist
Date: February 8, 2018
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