WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Agfa-Gevaert N.V. v. Xiaohong Wang

Case No. D2017-2367

1. The Parties

The Complainant is Agfa-Gevaert N.V. of Mortsel, Belgium, represented by Novagraaf Belgium NV/SA, Belgium.

The Respondent is Xiaohong Wang of Sanming, Fujian, China.

2. The Domain Name and Registrar

The disputed domain names <aagfa.info>, <agffa.info> and <aggfa.info> are registered with GoDaddy.com, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 30, 2017. On December 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 4, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of all the disputed domain names and providing the contact details. In response to an amendment request by the Center, the Complainant filed an amended Complaint on December 13, 2017.

The Center verified that 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 the Respondent of the amended Complaint, and the proceedings commenced on December 15, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 5, 2018.

The Center appointed Matthew Kennedy as the sole panelist in this matter on January 17, 2018. 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 a developer of medical software and medical imaging devices. It owns multiple registrations for the trademark AGFA including European Union trademark registrations numbers 3353463 and 8820979, registered from January 24, 2005 and July 5, 2010, respectively, specifying goods and services in classes 1, 2, 7, 9, 10, 40 and 42, and goods in class 5, respectively. Those registrations remain current.

The Respondent is an individual located in China. His contact details in the Registrar's WhoIs database are incomplete, as a result of which the courier was unable to deliver the Written Notice of the Complaint.

The disputed domain names were all registered on August 8, 2017. They resolve to different websites, all of which are in Chinese, and all of which currently display hyperlinks relating to lotteries. According to the evidence provided by the Complainant, the website to which the disputed domain name <aagfa.info> resolved advertised books and was purportedly operated by Lewen Novel Network; the website to which the disputed domain name <agffa.info> resolved displayed links to a large number of websites relating to news, videos, shopping, real estate, classes and other things, while a notice claimed that copyright in the site belonged to Anhui Large-Scale Network Media Co. Ltd; the website to which the disputed domain name <aggfa.info> resolved displayed a notice from Beijing Lehecai Technology Co. Ltd., advising that the website was closed.

5. Parties' Contentions

A. Complainant

The disputed domain names are confusingly similar to the Complainant's AGFA trademark. They include the trademark in its entirety with some additional, identical letters. They consist of common, obvious or intentional misspellings of the trademark.

The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent has not been commonly known by the disputed domain names. The Complainant has not licensed or otherwise authorized the Respondent to use its AGFA trademark or any domain name including that trademark. The Respondent's website makes no reference to the words "agfa", "aagfa", "agffa" or "aggfa".

The disputed domain names were registered and are being used in bad faith. The AGFA trademark is so famous that the Respondent must have been fully aware of it when selecting the disputed domain names. The Respondent did not reply to the Complainant's cease-and-desist letter.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:

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

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

(iii) the disputed domain names have been registered and are being used in bad faith.

A. Identical or Confusingly Similar

Based on the evidence submitted, the Panel finds that the Complainant has rights in the AGFA trademark.

The disputed domain names each incorporate the AGFA trademark but repeat one or other of its first three letters. They are obvious misspellings of the Complainant's AGFA trademark and examples of a practice known as "typosquatting". They are aurally identical to the Complainant's AGFA trademark. The misspelt AGFA trademark is the dominant and only distinctive element of each disputed domain name.

The only other element in each disputed domain name is the Top-Level Domain ("TLD") suffix ".info". A TLD suffix may generally be disregarded for the purposes of assessing confusing similarity under the Policy. See Lego Juris A/S v. Chen Yong, WIPO Case No. D2009-1611; Dr. Ing. h.c. F. Porsche AG v. zhanglei, WIPO Case No. D2014-0080.

Therefore, the Panel finds that the disputed domain names are confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:

"(i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or

(ii) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the Respondent has] acquired no trademark or service mark rights; or

(iii)[the Respondent is] making a legitimate non-commercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."

The Panel has already found that the disputed domain names are confusingly similar to the Complainant's trademark. The Complainant submits that it has not licensed or otherwise authorized the Respondent to use its AGFA trademark or any domain name including that trademark.

As regards the first circumstance set out above, each disputed domain name resolves to a website displaying hyperlinks. Nothing on the websites to which the disputed domain names resolve indicates any connection to the disputed domain names. Rather the disputed domain names are obvious misspellings of the Complainant's AGFA trademark that could attract Internet users who mistakenly misspell the Complainant's trademark. Accordingly, the Panel does not consider these websites to be bona fide offerings of goods or services that would create rights or give rise to legitimate interests with respect to the disputed domain names for the purposes of the Policy.

As regards the second circumstance set out above, the Respondent's name is "Xiaohong Wang", which does not resemble any of the disputed domain names.

As regards the third circumstance set out above, each disputed domain name currently resolves to a website displaying links regarding lotteries, and previously each used to display advertisement links, none of which is a legitimate non-commercial or other fair use for the purposes of the Policy.

In view of the above circumstances, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent failed to rebut that case because he did not respond to the Complaint.

Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:

"(iv) by using the [disputed] domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent's] website or location or of a product or service on [the Respondent's] website or location."

The disputed domain names were registered in 2017, after the Complainant registered its AGFA trademark. The Complainant has made extensive use of its AGFA trademark. The choice of the three disputed domain names, which each repeat a different letter in the Complainant's trademark, evidences an intention to misspell that trademark. The disputed domain names have no other apparent meaning. They resolve to websites that display hyperlinks and that have no apparent connection with the disputed domain names. In these circumstances, the Panel has reason to find that the Respondent targeted the trademark value of the Complainant's mark and registered the disputed domain names in bad faith.

The disputed domain names are used to attract Internet users who misspell the Complainant's trademark to websites displaying hyperlinks. The disputed domain names operate by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's websites. This use is intentional and either for the Respondent's own commercial gain, if the Respondent is paid to direct traffic to other websites, or for the commercial gain of the operators of the hyperlinked websites, or both. In each scenario, these facts satisfy the requirements of paragraph 4(b)(iv) of the Policy. See Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, WIPO Case No. D2007-0267.

Therefore, the Panel finds that the disputed domain names have been registered and are being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of 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 names, <aagfa.info>, <agffa.info> and <aggfa.info>, be transferred to the Complainant.

Matthew Kennedy
Sole Panelist
Date: January 20, 2018