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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

M.F.H. Fejlesztõ Korlátolt Felelõsségû Társaság v. Admin Contact, PrivateName Services Inc. / NameInvest Ltd.

Case No. D2016-0709

1. The Parties

The Complainant is M.F.H. Fejlesztõ Korlátolt Felelõsségû Társaság of Budapest, Hungary, represented by Novagraaf Nederland B.V., Netherlands.

The Respondent is Admin Contact, PrivateName Services Inc. of Vancouver, Canada / NameInvest Ltd. of The Valley, Anguilla, The United Kingdom of Great Britain and Northern Ireland ("United Kingdom").

2. The Domain Name and Registrar

The disputed domain name <intimissmi.com> is registered with PSI-USA, Inc. dba Domain Robot (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 11, 2016. On April 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 12, 2016, the Registrar 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 13, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on April 20, 2016.

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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 12, 2016.

The Center appointed Jonas Gulliksson as the sole panelist in this matter on May 23, 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 is an international producer of underwear and part of the Calzedonia s.p.a. Group with 1.200 shops in 31 differents countries.

The Complainant owns numerous trademark registrations for the word mark INTISSIMI and other trademarks containing the word "Intimissimi" as a dominant element, inter alia European Union Trade Mark ("EUTM") no. 011941911 INTIMISSIMI with registration date April 28, 2010 registered for goods and services in classes 3, 25 and 35, and EUTM no. 008696148 INTIMISSIMI with registration date April 28, 2010 registered for goods in classes 9, 14, 18 and 24.

The disputed domain name was registered on January 15, 2015. The disputed domain name directs to a website displaying pay-per-click ("PPC") links to adult entertainment websites.

5. Parties' Contentions

A. Complainant

The Complainant mainly alleges the following:

The disputed domain name is near identical and confusingly similar to the Complainant's registered trademarks INTIMISSIMI. The only difference is the absence of the letter "i" in the disputed domain name.

The Respondent has no rights or legitimate interest in respect of the disputed domain name. No consent has been given by Complainant to the Respondent's use of the trademark nor is there any commercial link between the Complainant and the Respondent. There is no evidence of any bona fide offering of goods or services on the Respondents website.

The Respondent is intentionally for commercial gain using a misspelling of the Complainant's trademark in order to attract visitors to its website. In January 2016, the Complainant sent a cease-and-desist letter to the Respondent, who did not reply to said letter. The disputed domain name was registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

The Complainant has the burden of proving each of the following three elements under paragraph 4(a) of the Policy in order to be entitled to a transfer of the disputed domain name:

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

(ii) that the 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.

A. Identical or Confusingly Similar

The only difference between the Complainant's trademarks INTISSIMI and the disputed domain name is the absence of the letter "i" in INTIMISSIMI ("intimissmi") and the addition of the generic Top-Level Domain ("gTLD") ".com". These differences are not sufficient to differentiate the disputed domain name from the Complainant's trademark INTIMISSIMI. The Panel finds that the disputed domain name is confusingly similar to the Complainant's trademarks and the first requirement of the Policy is consequently fulfilled.

B. Rights or Legitimate Interests

In cases where a Respondent fails to present a response, the Complainant is still required to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.1., and The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064 and Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.

The Panel finds that the disputed domain name was registered after the filing and registration of the Complainant's trademarks and notes that the Complainant asserts that there is no relationship between the Complainant and the Respondent. The Panel consequently finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant's allegations as there is no evidence suggesting that the Respondent has any rights or legitimate interests in respect of the disputed domain name. The Panel therefore finds the second requirement of the Policy fulfilled.

C. Registered and Used in Bad Faith

In the Panel's opinion the arguments and evidence presented by the Complainant show that the Respondent is intentionally using a misspelling of the Complainant's trademarks to, for commercial gain, attract visitors to its own website where various links to pornography and sex related web pages are displayed. The Respondents use of the disputed domain name constitutes bad faith according to the Panel and since the disputed domain name was registered for this purpose the Panel finds that the registration was conducted in bad faith. The third requirement of the Policy is therefore also 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 <intimissmi.com> be transferred to the Complainant.

Jonas Gulliksson
Sole Panelist
Date: June 1, 2016

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