The Complainant is Qdes Works B.V., the Netherlands, internally represented.
The Respondent is Maxim Filippov, Norway. 2. The Domain Name, Registry and Registrar
The Registry of the disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2021. On April 6, 2021, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On April 8, 2021, the Registry transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 8, 2021, providing the registrant and contact information disclosed by the Registry, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 8, 2021. The Center verified that the Complaint, together with the amended Complaint, satisfied the formal requirements of the .eu Alternative Dispute Resolution Rules (the “ADR Rules”) and the World Intellectual Property Organization Supplemental Rules for .eu Alternative Dispute Resolution Rules (the “Supplemental Rules”). In accordance with the ADR Rules, Paragraph B(2), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 15, 2021. In accordance with the ADR Rules, Paragraph B(3), the due date for Response was May 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 17, 2021. The Center appointed Marilena Comanescu as the sole panelist in this matter on May 27, 2021. 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 ADR Rules, Paragraph B(5). The language of the proceeding is English. 4. Factual Background The Complainant Qdes Works B.V. is a company based in the Netherlands which is promoting high end digital wireless audio systems for musicians under the product name “StageClix”. According to Annex 2 to Complaint, the Complainant is the proprietor of the Benelux Trademark Registration No. 1168779 for STAGECLIX (word) filed on October 16, 2008, registered on January 12, 2009, and protected until October 16, 2028 for goods and services in classes 9, 35, 38, and 42. The Complainant is promoting its goods and services on the websites available at “www.stageclix.com” and “www.stageclix.nl”. The disputed domain name The Complainant requests the transfer of the disputed domain name to it and contends the following: - the disputed domain name - the Respondent has no rights or legitimate interests in the disputed domain name as the Complainant’s products are high end digital wireless audio systems for musicians whereas the Respondent is using the disputed domain name for sexual oriented purposes, which harms Complainant’s trademark; and - the Respondent is using the disputed domain name intentionally in a bad manner. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to Article 22(1)(a) of the Commission Regulation (EC) No. 874/2004 (hereinafter, the “Regulation”), an ADR procedure may be initiated by any party where the registration is speculative or abusive within the meaning of Article 21. Article 21(1) of the Regulation, provides that a registered domain name shall be subject to revocation where it is identical or confusingly similar to a name in respect of which a right is recognized or established by national and/or European Union law and where it: (a) has been registered by its holder without rights or legitimate interests in the name; or (b) has been registered or is being used in bad faith. In the present ADR proceeding, the Complainant has pleaded the cumulative existence of the circumstances provided by the Regulation and ADR Rules (points (a) and (b) above). The Panel notes that the Regulation and ADR Rules list the issues under points (a) and (b) in the alternative, but nevertheless the Panel will examine both of these issues in order to reach its decision in the present ADR proceeding. A. Identical or Confusingly Similar to a name in respect of which a right or rights are recognized or established by national law of a Member State and/or European Union law Article 10(1) of the Regulation contains a list of rights which may fulfill the definition of “name in respect of which a right is recognized or established” provided in Article 21(1) of the Regulation. Said list includes, inter alia: “registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works.” Paragraph B(11)(d)(1)(i) of the ADR Rules requires that the disputed domain name be “identical or confusingly similar to a name in respect of which a right is recognized or established by national law of a member State and/or European Union law”. The Panel finds that the Complainant is the proprietor of a Benelux registration for the word trademark STAGECLIX. The Panel notes that the disputed domain name The Panel therefore finds that the disputed domain name Under the ADR Rules, the burden of proof for the lack of rights or legitimate interests of the Respondent lies with the Complainant. However, the existence of negative facts is difficult to prove, and the relevant information for the Respondent is mostly in its sole possession. Therefore, the Panel holds that it is sufficient that the Complainant makes a prima facie demonstration that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production then shifts to the Respondent to submit appropriate evidence demonstrating rights or legitimate interests in the disputed domain name. If the Respondent fails to come forward with such relevant evidence, the Complainant is deemed to have satisfied the second element. The Complainant contends that it has registered trademark for STAGECLIX since 2008 and its StageClix products are promoted on the website “www.stageclix.com”. Although properly notified with regard to the present procedure, the Respondent failed to provide a Response to invoke any circumstances which could demonstrate any rights or legitimate interests in the disputed domain name. Example of justification for registering or using the disputed domain name, are listed in Paragraph B(11)(e) of the ADR Rules as follows (i) prior to commencing this proceeding the Respondent has used the disputed domain name in connection with the offering of goods or services or that it has made demonstrable preparations to do so; According to the Complaint, the Respondent was using the disputed domain name for adult oriented purposes. The Panel notes that there is no reasonable explanation for the selection of the disputed domain name for such use. Accordingly, in the absence of any evidence to support a possible basis on which the Respondent may have rights or legitimate interests in respect of the disputed domain name, and having in view the other circumstance of this case, the Panel accepts the Complainant’s unrebutted prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has satisfied the condition set out at Paragraph B(11)(d)(1)(ii) of the ADR Rules. C. Registered or Used in Bad Faith Under Article 21(1) of the Regulation (EC) No. 874/2004 and Paragraph B(11)(d)(1) of the ADR Rules, lack of rights or legitimate interests and registration or use in bad faith are considered alternative requirements for a successful complaint. As the Panel has found that the Respondent lacks rights or legitimate interests in the disputed domain name no further discussion on bad faith registration or use is necessary. Nevertheless, noting the composition of the disputed domain name, the Panel finds it likely that the Respondent was aware of the Complainant at the registration of the disputed domain name. The Complainant have submitted evidence showing that the Respondent registered the disputed domain name well after the Complainant registered its trademark and corresponding websites. The Respondent refused to participate in the present proceeding. Furthermore, according to Panel’s searches1 , the Respondent was involved in at least one previous domain name procedure under the ADR Rules, decided against it, see AB Electrolux v. Maxim Filippov,WIPO Case No. DEU2019-0012 for the domain name The Panel therefore finds that the Respondent has both registered and used the disputed domain name in bad faith and that the condition set out at Paragraph B(11)(d)(1)(iii) of the ADR Rules has also been satisfied. 7. Decision For the foregoing reasons, in accordance with Paragraph B(11) of the ADR Rules, the Panel orders that the disputed domain name Marilena Comanescu 1 See section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) regarding Panel’s powers to conduct limited searches 2 As the Complainant is established in the Netherlands, a Member State of the European Union, it satisfies the general eligibility criteria for registration of the disputed domain name set out in Article 4(2)(b) of Regulation (EC) No. 733/2002 as amended by Regulation (EU) 2019/517.
(ii) the Respondent as an undertaking, organization or natural person has been commonly known by the disputed domain name; or that
(iii) the Respondent is making a legitimate and noncommercial or fair use of the disputed domain name, without intent to mislead consumers or harm the reputation of a name in which a right is recognized or established by national law and/or European Union law.
Sole Panelist
Date: June 2, 2021
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