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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

BerganKDV, Ltd v. Name Redacted

Case No. D2017-0460

1. The Parties

Complainant is BerganKDV, Ltd of St. Cloud, Minnesota, United States of America ("United States"), represented by Bradley & Riley PC, United States.

Respondent is Name Redacted.1

2. The Domain Names and Registrar

The disputed domain name <bergankdv.net> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 6, 2017. On March 6, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 8, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amended Complaint on March 24, 2017.

The Center verified that the Complaint together with the amended 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 March 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 17, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 18, 2017.

The Center appointed Lorelei Ritchie as the sole panelist in this matter on April 26, 2017. 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 United-States company based in St. Cloud, Minnesota, United States. Complainant conducts business in tax audit accounting services; technology services; payroll; timekeeping; HR support; wealth management; strategic planning; and advisory services. Complainant has done business under the BERGANKDV mark since July 1, 2015 in the United States, including at a center located at the address that Respondent lists as his address of record.

Since July 1, 2015, Complainant has earned over USD 76 million in revenue for its consumer services. Complainant was ranked 24th largest asset management firm in the United States in 2016, and among the top 100 accounting firms in the United States (#81) in 2017. Both rankings were compiled by Accounting Today.

An affiliated company of Complainant owns the registration for the domain name <bergankdv.com>. Complainant uses the domain name to host a website that provides information for consumers on its services offered under the BERGANKDV mark. Complainant maintains the website.

Respondent registered the disputed domain name, <bergankdv.net>, on November 1, 2016.

Respondent has apparently not used the disputed domain name to link to an active web site.

Respondent has no license from, or other affiliation with, Complainant.

5. Parties' Contentions

A. Complainant

Complainant contends that (i) the disputed domain name is identical or confusingly similar to Complainant's trademark; (ii) Respondent has no rights or legitimate interest in the disputed domain names; and (iii) Respondent registered and is using the disputed domain names in bad faith.

In particular, Complainant alleges that it has established common law rights in the mark BERGANKDV for various services, since July 1, 2015, at least in the United States. Complainant further alleges that Respondent purports to be located in the United States, and specifically has listed an address where Complainant operates a business center. Complainant alleges that Respondent has no rights or legitimate interests in this or any use of the term BERGANKDV. Rather, Complainant alleges that Respondent has registered and is using the disputed domain name in bad faith, providing false contact details, consisting of the name of one of Complainant's executive employees.

B. Respondent

Respondent did not reply to Complainant's contentions in this proceeding.

6. Discussion and Findings

A. Identical or Confusingly Similar

This Panel must first determine whether the disputed domain names is "identical or confusingly similar to a trademark or service mark in which the Complainant has rights" in accordance with Paragraph (4)(a)(i) of the Policy. The Panel finds that it is. Complainant has established that it has common law trademark rights in the mark BERGANKDV, which rights are not disputed in this proceeding. The disputed domain name incorporates in full Complainant's mark, BERGANKDV, and merely adds the generic Top-Level Domain ("gTLD") suffix, ".net". The Panel thus finds that consumers will likely assume that <bergankdv.net> refers to a website providing services endorsed by, or associated with, Complainant.

The Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel next considers whether Complainant has shown that Respondent has no "rights or legitimate interest" as must be proven to succeed in a UDRP dispute. Paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name "in connection with a bona fide offering of goods or services"; (ii) demonstration that respondent has been "commonly known by the domain name"; or (iii) "legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue". No evidence has been presented to this Panel that might support a claim of Respondent's rights or legitimate interests in the disputed domain name, and Respondent has no license from, or other affiliation with, Complainant.

Therefore, this Panel finds that Complainant has provided sufficient evidence of Respondent's lack of "rights or legitimate interests" in accordance with paragraph 4(a)(ii) of the Policy which Respondent has not rebutted.

C. Registered and Used in Bad Faith

There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. Respondent had not, as of the time of the filing of the Complaint, associated an active website with the disputed domain name. This does not, in and of itself, preclude a finding of bad faith by the Panel. Rather, the Panel looks at the circumstances of the case as a whole. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 3.2:

Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant's concealment of its identity.

Respondent did not file a response to the Complaint. As to the other noted factors, it is apparent that Respondent is aware of Complainant's mark since Respondent gave as its contact details the name and information of an executive employee of Complainant.

In light of these considerations, this Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with paragraph (4)(a)(iii) of the Policy.

7. Decision

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 <bergankdv.net> be transferred to Complainant.

Lorelei Ritchie
Sole Panelist
Date: May 8, 2017

1 According to the Complainant, the Respondent's name corresponds to that of an executive employee of the Complainant. Due to this likely identity theft, the Panel sees no purpose to be served by including the named Respondent in this Decision. Accordingly, the Panel has redacted the Respondent's name from the caption and body of this Decision, and attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name which includes the Respondent's name. The Center has been authorized to transmit Annex 1 to the Registrar as part of the order in this proceeding, but the Panel has also directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules that Annex 1 to this Decision shall not be published due to exceptional circumstances. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted, WIPO Case No. D2009-1788.

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