The Complainant is HARIBO Holding GmbH & Co. KG, Germany, represented by Rechtsanwältin Mareike Mahlert, Germany.
The Respondent is JH Kang, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 12, 2019. On June 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 13, 2019, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 21, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 11, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 12, 2019.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on July 25, 2019. 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 the trademark HARIBO, registered inter alia as International Registration No. 1299490 on March 1, 2016. The International Registration covers several jurisdictions such as Republic of Korea, European Union and United States of America.
The disputed domain name was registered on April 6, 2019. 5. Parties’ Contentions A. Complainant
The Complainant is a German company active worldwide in the confectionary business and is one of the world’s leading companies in goods such as pastilles, gums, jellies, and chews. It employs nearly 7,000 people and has production facilities in 10 countries.
The disputed domain name is confusingly similar to the Complainant’s trademark as it incorporates the trademark in its entirety, the only difference being the addition of the country code Top-Level Domain (“ccTLD”) “.co”, which may be disregarded in the comparison.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name and the Respondent has no affiliation, association, sponsorship or connection with the Complainant and has not been authorized to register and use the disputed domain name.
The Complainant’s trademark is well-known and the Respondent must have been aware of the Complainant’s trademark when registering the disputed domain name. The disputed domain name resolves to a pay-per-click (“PPC”) website containing sponsored links generating earnings to the Respondent. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires that the Complainant establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The Complainant has established that it is the owner of the trademark HARIBO, registered in several countries all over the world. According to section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the applicable Top-Level Domain (“TLD”) is a standard registration requirement and as such disregarded under the first element of the confusing similarity test.
It follows that the ccTLD “.co” is to be disregarded in the comparison and the disputed domain name is identical with the Complainant’s trademark HARIBO.
Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s respective trademark and hence the first element of the Policy has been fulfilled. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name.
It is widely accepted among UDRP panels that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270 and section 2.1 of WIPO Overview 3.0.
The Complainant has credibly submitted that the Respondent is neither affiliated with the Complainant in any way nor has the Respondent been authorized by the Complainant to use and register the disputed domain name, that the Respondent has no prior rights or legitimate interest in the disputed domain name, and that the Respondent has not made and is not making a legitimate noncommercial or fair use of the disputed domain name and is not commonly known by the disputed domain name in accordance with paragraph 4(c) of the Policy.
Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. Considering the Panel’s findings below, the Panel finds that there are no other circumstances that provide the Respondent with any rights or legitimate interests in the disputed domain names. Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that 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 that complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) [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) [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 [the respondent’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 respondent’s] website or location or of a product or service on [the respondent’s] website or location.”.
The Complainant has submitted arguments and evidence that its trademark HARIBO is a well-known trademark and hence the Respondent must have been aware of the Complainant and its trademark when registering the disputed domain name. The Panel finds that the Complainant’s trademark HARIBO is a well-known trademark and agrees with the Complainant that it is inconceivable that the Respondent would not have been aware of the Complainant’s trademark when registering the disputed domain name.
The disputed domain name resolves to a PPC website containing links to other websites. By clicking the links, the Internet user generates revenue for the Respondent. The website also includes a link name “Haribo gummies”, which is a direct reference to the Complainant’s trademark and the goods for which its trademark is well known.
Based on the above, the disputed domain name is used to attract, for commercial gain, Internet users to the Respondent’s website. Hence, the Panel finds that the disputed domain name was registered and is being used in bad faith. Therefore, the Panel finds that the third element of the Policy is 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 the Complainant.
Tuukka Airaksinen
Sole Panelist
Date: August 8, 2019
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