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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Almdudler-Limonade A. & S. Klein GmbH & Co. KG v. Che, Terresa Akontifu

Case No. D2015-1735

1. The Parties

Complainant is Almdudler-Limonade A. & S. Klein GmbH & Co. KG of Vienna, Austria, represented by Schwarz Schönherr Rechtsanwälte KG, Austria.

Respondent is Che, Terresa Akontifu of Taksim, Turkey.

2. The Domain Name and Registrar

The disputed domain name <almdudlergmbh.com> is registered with Network Solutions, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 30, 2015. On September 30, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 1, 2015, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on October 9, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 29, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on October 30, 2015.

The Center appointed Stephanie G. Hartung as the sole panelist in this matter on November 18, 2015. 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

Complainant is a company under the trade name "Almdudler-Limonade" with legal domicile in Vienna/Austria that is active in the lemonade industry.

Complaint has provided evidence that it is the owner of numerous registered trademarks relating to the term "Almdudler", inter alia:

- Wordmark ALMDUDLER, Office for Harmonization in the Internal Market (OHIM), Registration No. 000362236; Registration Date: May 17, 1999; Status: active.

- Wordmark ALMDUDLER, Office for Harmonization in the Internal Market (OHIM), Registration No. 010650133; Registration Date: July 2, 2012; Status: active.

Moreover, Complainant has evidenced to run a website at "www.almdudler.com" in order to promote its lemonade products and to provide information on its business and related services.

The disputed domain name <almdudlergmbh.com> was registered on September 9, 2015. According to an Affidavit by Complainant's legal representative, on September 21, 2015, the disputed domain name redirected to a website at "www.almdudlergmbh.com" where Complainant's official business address in Vienna was made use of by Respondent.

Complainant requests that the disputed domain name be transferred to Complainant.

5. Parties' Contentions

A. Complainant

Complainant asserts to have used the ALMDUDLER brand in Austria and in most other EU countries since the year 1910.

Complainant argues that the disputed domain name is identical to the ALMDUDLER trademarks since the addition of the suffix "gmbh" did not diffuse the confusingly similarity between the two. Moreover, Complainant neither authorized Respondent to make use of the ALMDUDLER trademark nor did Respondent show any sign of a legitimate noncommercial or fair use of the disputed domain name. Finally, by using Complainant's official business address on the website at the disputed domain name, Respondent intentionally attempted to attract, for commercial gain, Internet users to its own website and, thereby, deceived them.

B. Respondent

Respondent did not reply to Complainant's contentions.

6. Discussion and Findings

Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:

(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) That the disputed domain name has been registered and is being used in bad faith.

Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(e) of the Rules provides that if Respondent does not submit a Response, in the absence of special circumstances, the Panel is to decide the dispute based upon the Complaint.

A. Identical or Confusingly Similar

The Panel concludes that the disputed domain name <almdudlergmbh.com> is at least confusingly similar to the ALMDUDLER trademark in which Complainant has shown to have rights.

The disputed domain name incorporates the ALMDUDLER trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see, e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS), WIPO Case No. D2003-0696). Moreover, it has been held in numerous UDRP decisions and has become a consensus view among UDRP panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.9) that the addition of a generic or descriptive term or geographical wording to a trademark in a domain name is normally insufficient in itself to avoid the finding of confusing similarity under the first element of the URDP. Accordingly, the mere addition of the generic and descriptive term "gmbh" (which is the abbreviation of the German term "Gesellschaft mit beschränkter Haftung" (limited liability company) and, thus, directly refers to Complainant's trade name) is not at all capable to dispel the confusing similarity arising from the incorporation of Complainant's ALMDUDLER trademark in the disputed domain name.

Therefore, the first element under the Policy set forth by paragraph 4(a)(i) in the case at hand is fulfilled.

B. Rights or Legitimate Interests

The Panel is further convinced that on the basis of Complainant's undisputed contentions, Respondent apparently has neither made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent makes a legitimate noncommercial or fair use thereof without intent for commercial gain.

Respondent has not been authorized to use Complainant's ALMDUDLER trademark, neither as a domain name nor in any other way. Also, there is no reason to believe that Respondent's name somehow corresponds with the disputed domain name. Finally, Complainant has provided an Affidavit by its legal representative according to which, on September 21, 2015, the disputed domain name redirected to a website at "www.almdudlerghmbh.com" where Complainant's official business address in Vienna was made use of by Respondent.

Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview 2.0, paragraph 2.1). In the case at hand, Respondent did not reply to Complainant's allegations as they were included in the Complaint duly notified to Respondent by the Center on October 9, 2015.

Therefore, the Panel finds that Complainant has also satisfied Paragraph 4(a)(ii) and, thus, the second element of the Policy.

C. Registered and Used in Bad Faith

The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith.

Complainant contends (by means of an Affidavit by its legal representative), and Respondent has not challenged this contention, that Respondent has used Complainant's official business address in Vienna on a website at "www.almdudlergmbh.com" which obviously also displayed Complainant's official "Almdudler" logo and featured a number of well-known products from the lemonade industry (e.g. "Coca-Cola" and "Red Bull"). The Panel, therefore, has no difficulty in finding that Respondent intentionally attempted to attract, for commercial gain, Internet users to its own website, by creating a likelihood of confusion with Complainant's ALMDUDLER trademark as to the source, sponsorship, affiliation or endorsement thereof. Such circumstances shall be evidence of the registration and use of the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.

In this context, the Panel also takes into account that (1) Respondent obviously provided false WhoIs information since the delivery of the Complaint sent to Respondent via TNT on October 9, 2015 failed because of an incorrect address and phone number and (2) Respondent kept silent on all of Complainant's contentions as they were included in the Complaint. These facts taken all together throw a light on Respondent's behavior which at least supports the conclusion of a registration and use of the disputed domain name in bad faith.

Therefore, the Panel finds that also the third element under the Policy set forth by paragraph 4(a)(iii) is fulfilled and that, accordingly, Complainant has satisfied all of the three requirements of paragraph 4(a) under the Policy.

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 <almdudlergmbh.com> be transferred to Complainant.

Stephanie G. Hartung
Sole Panelist
Date: November 27, 2015

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