The Complainants are Axis AB and Axis Communications AB of Lund, Sweden, represented Saba & Co. IP, Lebanon (collectively, the "Complainant").
The Respondent is Mohamad ali Yousefizadeh of Tehran, Islamic Republic of Iran. 2. The Domain Name and Registrar
The disputed domain name ("Disputed Domain Name") is registered with IRNIC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 29, 2016. On October 31, 2016, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Disputed Domain Name. On November 2, 2016, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Hard copies of the Complaint were received by the Center on November 7, 2016. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on November 10, 2016.
The Center verified that the Complaint and the amended Complaint satisfied the formal requirements of the .ir Domain Name Dispute Resolution Policy (the "Policy" or "irDRP"), the Rules for .ir Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for .ir 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 November 14, 2016. In accordance with the Rules, paragraph 5(a), the due date to file the Response was December 4, 2016. On December 5, 2016, the Center notified the Respondent's default.
The Center appointed Gabriela Kennedy as the sole panelist in this matter on December 20, 2016. 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 was established in 1984, and manufactures and distributes network cameras. The Complainant invented the world's first Internet protocol camera in 1996. The Complainant holds numerous registered trade mark rights incorporating the AXIS mark around the world ("AXIS Trade Marks"), including Islamic Republic of Iran trade mark AXIS in English and Farsi (registration number 219990, registered on October 26, 2014), international trade mark registration for AXIS device mark, designating the Islamic Republic of Iran (registration number 848136, registered on October 1, 2004), and international trade mark registration for AXIS trade mark, designating the Islamic Republic of Iran (registration number 958093, registered on February 11, 2008).
The Respondent registered the Disputed Domain Name on August 15, 2010. The Disputed Domain Name resolves to a website that offers products for sale which compete with the Complainant's business. 5. Parties' Contentions A. Complainant
The Complainant's contentions can be summarized as follows:
(a) The Complainant holds trade mark registration rights for the AXIS Trade Marks. The Disputed Domain Name is confusingly similar to the Complainant's AXIS Trade Marks. The word "IP" is a generic word that refers to Internet protocol, and adds nothing to distinguish the Disputed Domain Name from the Complainant's AXIS Trade Marks.
(b) The Respondent is not authorized to use the AXIS Trade Marks. There is no evidence that the Respondent is commonly known by the Disputed Domain Name, or is using the Disputed Domain Name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the Disputed Domain Name. The Respondent's name bears no similarity to the Disputed Domain Name. The Respondent is also using a logo on the website to which the Disputed Domain Name resolves, which is confusingly similar to the Complainant's device mark, as they are both triangles, with slightly different colours. Therefore, the Disputed Domain Name will confuse users into believing that the Complainant and the Respondent are connected.
(c) The Respondent is using the Disputed Domain Name to offer online products bearing the AXIS Trade Marks. Furthermore, the Complainant contends that it visited the Respondent's office in Tehran and, they were provided with a catalogue of Internet protocol cameras, including technical specifications and prices, all of which bear the Complainant's AXIS word mark, and a device mark similar to the Complainant's triangle device mark. The Respondent has therefore registered the Disputed Domain Name in order to attract Internet users for commercial gain.
(d) The Respondent failed to respond to a warning letter issued by the Complainant on June 6, 2015, asking the Respondent to transfer the Disputed Domain Name to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions.
The fact that the Respondent has not submitted a response does not automatically result in a decision in favor of the Complainant. However, the failure of the Respondent to file a response may result in the Panel drawing appropriate inferences from such default. The Panel may also accept all reasonable and supported allegations and inferences flowing from the Complaint as true (see Entertainment Shopping AG v. Nischal Soni, Sonik Technologies, WIPO Case No. D2009-1437 and Charles Jourdan Holding AG v. AAIM,WIPO Case No. D2000-0403). 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered or is being used by the Respondent in bad faith. A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in the AXIS Trade Marks, based on its international and Islamic Republic of Iran trade mark registrations. The Panel finds that the distinctive part of the Disputed Domain Name is the word "axis", and the letters "ip" do nothing to distinguish the Disputed Domain Name from the Complainant's AXIS Trade Marks.
It is well established that when determining whether or not a trade mark is identical or confusingly similar to a domain name, the country code Top-Level Domain, in this case ".ir", may be disregarded (see Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd, WIPO Case No. D2006-0762).
The Panel accordingly finds that paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
A complainant must establish a prima facie case in respect of the lack of rights or legitimate interests of a respondent. Once established, the respondent then carries the burden of demonstrating that it has rights or legitimate interests in the domain name (see Arkema France v. Mohammad Farzaneh,WIPO Case No. DIR2015-0019; and Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.
The Panel accepts that the Complainant registered and began using the AXIS Trade Marks many years before the Disputed Domain Name was registered by the Respondent, and the Complainant has never authorised the Respondent to use its trade mark. Accordingly, the Panel is of the view that a prima facie case has been established and it is for the Respondent to prove that it has rights or legitimate interests in the Disputed Domain Name. As the Respondent has not submitted a response to the Complainant's contentions, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainant's evidence.
Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Name by demonstrating any of the following:
(i) before any notice to them of the dispute, the Respondent's use of, or demonstrable preparations to use the Disputed Domain Name or a name corresponding to the Disputed Domain Name was in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the Disputed Domain Name; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Respondent has not provided any evidence to demonstrate that it has become commonly known by the Disputed Domain Name, or a name corresponding to it. The Respondent's name is in no way connected to the Disputed Domain Name.
The Respondent has been using the Disputed Domain Name to resolve to a website that offers products for sale which directly compete with the Complainant's business. The website also incorporates a triangle shaped logo. Such logo is confusingly similar to the Complainant's device mark. Both the Respondent's logo and the Complainant's device mark contain a triangle with a small trapezoid inside the far left corner of the triangle, and the trapezoid and the rest of the triangle are in two different colours. The only difference between the Respondent's logo and the Complainant's device mark is that the Respondent uses the colours green and red, and the Complainant uses the colours yellow and red.
In light of the foregoing, the Respondent cannot be said to be using the Disputed Domain Name to make a bona fide offering of goods or services, or for any legitimate noncommercial or fair use, as the Respondent is attempting to take advantage of the Complainant's trade marks in order to generate profit.
The Panel finds that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered or Used in Bad Faith
The Panel accepts that the Respondent knew of the Complainant and the Complainant's AXIS Trade Marks at the time he registered the Disputed Domain Name, and he registered and used the Disputed Domain Name in bad faith, based on the following:
(a) the Respondent registered the Disputed Domain Name in August 2010, which is 26 years after the Complainant was first established and 6 years after it first obtained its international registration for the AXIS Trade Marks, designating the Islamic Republic of Iran (where the Respondent is based);
(b) the website to which the Disputed Domain Name resolves purports to offer network cameras for sale, which is in direct competition with the Complainant's products; and
(c) the Respondent is using a logo on the website to which the Disputed Domain Name resolves, which is almost identical to the Complainant's registered device mark, save that it uses the colours red and green, instead of red and yellow.
Based on the above, the Panel believes that the Respondent registered and is using the Disputed Domain Name in bad faith for the purpose of confusing Internet users into believing that the Disputed Domain Name is associated with the Complainant, in order to make a commercial gain.
The Panel finds that paragraph 4(a)(iii) of the Policy is satisfied. 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.
Gabriela Kennedy
Sole Panelist
Date: January 3, 2017
Full & Egal Universal Law Academy