The Complainants are Willi Luger and Wilhelm Luger GmbH, both of Ernstbrunn, Austria, represented by Peter Schober, Vienna, Austria.
The Respondents are DomainDoorman LLC Privacy Service of Florida, United States of America, and Pertshire Marketing, Ltd of British Virgin Islands, Overseas Territory of the United Kingdom.
The disputed domain name <culumnatura.com> is registered with DomainDoorman, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on April 29, 2009, and in hard copy on May 7, 2009. On April 29, 2009, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the disputed domain name. On April 29, 2009, DomainDoorman, LLC transmitted by email to the Center a response, stating that the Respondent named in the Complaint is “NOT the Registrant of the domain name,” and providing the contact information of another registrant. The Center sent an email communication to the Complainants on May 8, 2009, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amendment to the Complaint by email on May 13, 2009, which added the disclosed registrant as a second respondent. The Center verified that the Complaint together with the amendment to 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 14, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was June 3, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 4, 2009.
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on June 9, 2009. 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.
Willi Luger (“the First Complainant”) has produced and sold various cosmetics and hygiene products under the mark CULUMNATURA. He obtained registration of the mark in Austria on June 3, 2004, and in the European Community on April 18, 2006. The First Complainant registered the domain name <culumnatura.at>. In June 2006, the First Complainant established Wilhelm Luger GmbH (“the Second Complainant”), a limited liability company, and transferred his business to the company, including the license of the trademark and the registration of the domain name. The First Complainant serves as the managing director and majority shareholder of the Second Complainant.
The Respondent DomainDoorman LLC Privacy Service registered the disputed domain name on October 8, 2006. Registration was modified to indicate a change in the registrant, on April 30, 2009, the day after the Complaint was filed.
The Complainants contend that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainants have rights; (ii) the Respondents have 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 Complainants also state that the First Respondent is one of three major cybersquatters in the world. In response to the Center's invitation to submit an amendment to the Complaint, the Complainants contend that the registrar had employed the very same tactic of changing registrants immediately after the filing of the complaint in a previous UDRP case, BHP Billiton Innovation Pty Ltd. v. DomainDoormnan LLC Privacy Service and Pertshire Marketing, Ltd, WIPO Case No. D2008-1732.
The Respondents did not reply to the Complainants' contentions. Under paragraphs 5(e) and 14(a) of the Rules, the Panel may decide the dispute based on the Complaint. The Panel may also draw appropriate inferences from such default, according to paragraph 14(b) of the Rules.
The Complainants have demonstrated rights in the mark, CULUMNATURA, through use of the mark for their products, and have provided proof of formal registration of the mark. The disputed domain name <culumnatura.com>, which incorporates the CULUMNATURA mark in full, is identical or confusingly similar to the Complainants' mark.
The Complainants have satisfied the first element.
The Complainants have met their initial burden of making a prima facie showing that the Respondents lack rights or legitimate interests in respect of the disputed domain name. The burden thus shifts to the Respondents to demonstrate any such rights or legitimate interests. The Respondents have defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondents' rights or legitimate interests in the disputed domain name, as described paragraph 4(c) of the Policy, or otherwise.
The second element is established.
In order to prevail, the complainant must also show that the disputed domain name “has been registered and is being used in bad faith,” under paragraph 4(a)(iii) of the Policy. Paragraph 4(b) of the Policy provides a non-exhaustive list of ways in which bad faith can be shown, for purposes of paragraph 4(a)(iii).
The Panel determines that bad faith is shown in the present case under two independent grounds. First, there is ample evidence to show that the Respondents registered the domain name “primarily for the purpose of selling, renting, or otherwise transferring the domain name registration” to the Complainants, the owners of the mark, for a sum beyond the documented out-of-pocket costs directly related to the domain name, as provided in paragraph 4(b)(i). To the Complainants' request for a quotation of a price for the sale of the disputed domain name, the Respondents effected a response stating that they would consider “offers above $8900 US Dollars.”
Second, the record indicates that, as described in paragraph 4(b)(iv), the Respondents, “by using the domain name . . . intentionally attempted to attract, for commercial gain, Internet users to [the Respondents'] web site . . . by creating a likelihood of confusion with the complainant[s'] mark as to the source, sponsorship, affiliation, or endorsement of [the Respondents'] web site.” Here, Internet users who type in the disputed domain name are taken to a website that contains various links, with references to “skin care,” “beauty products,” and “cosmetics,” all products that the Complainants produce and sell under their mark.
The third element is established.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <culumnatura.com> be transferred to Willi Luger, the first Complainant.
Dated: June 23, 2009