WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PCO AG v. Register4Less Privacy Advocate, 3501256 Canada, Inc.
Case No. D2017-1778
1. The Parties
The Complainant is PCO AG of Kelheim, Germany, represented by BPM Legal, Germany.
The Respondent is Register4Less Privacy Advocate, 3501256 Canada, Inc. of Laredo, Texas, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name <pco.com> is registered with Register4Less, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 4, 2017. On September 14, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 14, 2017, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on September 18, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 8, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 9, 2017.
The Center appointed Adam Taylor as the sole panelist in this matter on October 17, 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
The Complainant, which trades under the name “PCO”, was established in Germany in 1987. It manufactures cameras used in science and industry. In the early 1990s, the Complainant expanded its business activities globally by establishing an international network of sales partners and customers. The Complainant currently has an online presence in Canada, China, Germany, Singapore and the United States.
The Complainant operates websites at various “pco”-related domain names including at “www.pco.de”, “www.pco.cn” and “www.pco-tech.com”.
The Complainant owns European Union Trade Mark no. 013516083 for the term “pco.edge”, filed December 2, 2014, registered March 20, 2015, in class 9.
The disputed domain name bears a “creation date” of January 11, 2000. According to the Registrar, the disputed domain name was transferred to the Respondent on February 22, 2008.
There is no evidence that the Respondent has used the disputed domain name for an active website.
5. Parties’ Contentions
The following is a summary of the Complainant’s contentions.
The term “PCO” is a distinctive identifier associated with the Complainant and its goods and services.
The trade mark PCO.EDGE is solely connected to the Complainant and is not used in commerce by any third party. All Google.com search results for this term relate to the Complainant.
The disputed domain name is identical to the Complainant’s name “PCO”. The disputed domain name is also highly similar to the Complainant’s PCO.EDGE trade mark because it incorporates the only distinctive part of this name.
The Complainant has not licensed or otherwise permitted the Respondent to use its trade mark or incorporate it into a domain name and there is no evidence of use of the disputed domain name in connection with a bona fide offering or goods or services.
Accordingly, the Complainant has made a prima facie showing of lack of rights or legitimate interests on the part of the Respondent.
The Respondent has registered and used the disputed domain name in bad faith.
The term “PCO” is highly distinctive and solely connected with the Respondent. It is an invented abbreviation, which stands for a “Pioneer in Cameras and Opto-electronics“. Upon information, it is not an abbreviation used by any third party in commerce or elsewhere.
The Complainant has is widely known and has a strong reputation worldwide. It has 30 years of expert knowledge and experience as a leader in digital imaging used in scientific and industrial applications. The Respondent was obviously aware of the Complainant’s reputation at the time of registration of the disputed domain name.
The disputed domain name constitutes a passive holding in bad faith because the Complainant’s “PCO” marks are well-established, the Respondent has provided no evidence of actual or contemplated good faith use and there is no conceivable good faith use that would not be illegitimate.
The Respondent’s registration prevents the Complainant from reflecting its trade mark in a corresponding domain name.
The fact that the Respondent registered a disputed domain name, which includes a trade mark that is obviously connected with the Complainant, also supports a finding of bad faith as the very use of such a domain name by someone unconnected with the Complainant suggests opportunistic bad faith.
The registration and use of the disputed domain name constitutes an abusive threat hanging over the head of the Complainant. As the Respondent has no relationship with the Complainant, there is no plausible use of the disputed domain name other than the exploitation of the Complainant’s trade mark and name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Default by Respondent
The Respondent’s default does not by itself mean that the Complainant is deemed to have prevailed; nor is the default necessarily an admission that the Complainant’s claims are true. For example, in cases involving wholly unsupported and conclusory allegations advanced by the complainant, panels may find that – despite a respondent’s default – a complainant has failed to prove its case. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel must therefore consider the merits of the case put forward by the Complainant.
B. Identical or Confusingly Similar
Section 1.7 of WIPO Overview 3.0 observes that, where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognisable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.
Here, while the disputed domain name does not incorporate the Complainant’s registered trade mark PCO.EDGE in its entirety, a dominant feature of that trade mark, namely the acronym “PCO”, is recognisable within the domain name.
Accordingly, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s registered trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
C. Rights or Legitimate Interests
It is unnecessary to consider this element in light of the Panel’s conclusion under the third element below.
D. Registered and Used in Bad Faith
The Complainant asserts that the term “PCO” is “solely connected” with the Complainant and is not an abbreviation used by any third party whether in commerce or otherwise. That is plainly wrong, as an Internet search will readily establish. The term “PCO” is in fact a common three-letter combination, as one might expect.
A number of UDRP cases relating to three-letter domain names reflect the fact that such terms are generally in widespread use as acronyms or otherwise and it is entirely conceivable that a respondent registered such a domain name for bona fide purposes. See, e.g., ETH Zürich (Eidgenössische Technische Hochschule Zürich) v. Andre Luiz Silva Rocha, Construtora Norberto Odebrecht S/A, WIPO Case No. D2016-0444, as well as the cases cited therein.
Obviously, each case will depend on its own circumstances. So is there any evidence here which suggests that the Respondent registered the disputed domain name with the Complainant in mind?
The Complainant claims to be widely known by the name “PCO” and to have a strong reputation worldwide but it has supplied no evidence in support of this assertion. In any event, the Complainant appears to operate in a somewhat niche and specialist sector and, even if the Complainant does possess a strong reputation in its field, there is nothing to support the Complainant’s claim that the Respondent was “obviously” aware of the Complainant on acquisition of the disputed domain name.
Needless to say, the position would be different if the disputed domain name has been used for a website relating in some way to the Complainant’s industry but there is no evidence of any active website at the disputed domain name.
The Complainant says that the disputed domain name constitutes a passive holding in bad faith. This concept is explained at section 3.3 of WIPO Overview 3.0. In the Panel’s view, however, the Complainant has failed to establish passive holding in bad faith. As mentioned above, the term “PCO” is far from uniquely-identified with the Complainant. And the Complainant has overstated its case when it claims that there is no conceivable good faith use to which the disputed domain name could be put.
Accordingly, notwithstanding the Respondent’s default, the Panel concludes that the Complainant has failed to establish bad faith. While the Panel takes account that, for whatever reason, the Respondent has not appeared in this proceeding to contest the Complainant’s allegations, this is outweighed by the fact that the disputed domain name is common three-letter acronym and there is no evidence whatever to link the Respondent’s selection of the disputed domain name with the Complainant. The Complainant’s key conclusions are unsupported and conclusory. Indeed, in some respects, they are clearly wrong – as explained above.
For the foregoing reasons, the Complaint is denied.
Date: October 30, 2017