WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tel Sell IE B.V. v. J. van Hintum
Case No. DTV2011-0016
1. The Parties
The Complainant is Tel Sell IE B.V. of Almere, Netherlands, represented by Bousie Advocaten, Netherlands.
The Respondent is J. van Hintum of Best, Netherlands.
2. The Domain Name and Registrar
The disputed domain name <ahbra.tv> (the “Domain Name”) is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 21, 2011. On September 21, 2011, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the Domain Name. On September 21, 2011, Tucows Inc. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 27, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 17, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2011.
The Center appointed Willem J. H. Leppink as the sole panelist in this matter on November 1, 2011. 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 Domain Name was registered on August 8, 2011 by the Respondent. According to the Complainant there are no other pending legal procedures. However, the Complainant has indicated that an administrative decision was given by the Czech Arbitration Court on April 12, 2011 regarding the registration and use by the Respondent of the domain names <ahhbra.eu> and <ahbra.eu>. In the decision both domain names were transferred to the Complainant. Other relevant factual background is set out under Complainant’s Contentions as summarized in paragraph 5 below.
5. Parties’ Contentions
The Complainant has (in summary) stated the following:
The Complainant is the owner of the registered Benelux trademark AHH BRA for clothing, amongst others bras (hereinafter referred to as the “Trademark”). The application for the Trademark was filed by the Complainant on August 17, 2010, thus one year prior to the registration of the Domain Name. The Trademark is being used by the Complainant for bras.
The Respondent has – without permission of the Complainant – registered the Domain Name to exploit a webshop that offers for sale counterfeit Ahh Bra bras under the name Ah Bras.
The Domain Name is confusingly similar to the Trademark.
The Respondent is not commonly known by the Domain Name, nor has Respondent used the Domain Name for the bona fide offering of goods.
As the Respondent is using the Domain Name to attract consumers to its website by causing confusion with the Trademark with the intent for commercial gain, the Respondent is acting in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements to satisfy the Panel to transfer the domain name to it:
The domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
The Respondent has no rights or legitimate interests in respect of the domain name; and
The domain name has been registered and is being used in bad faith.
As the Respondent did not submit any response, the Panel will, in accordance with paragraph 5(e) of the Rules, decide this dispute based on the Complaint.
A. Identical or Confusingly Similar
The evidence submitted by the Complainant shows that the Complainant has rights in the Trademark.
There is no doubt that the Domain Name is confusingly similar to the Trademark for the purposes of the Policy as the Domain Name incorporates the Trademark in its entirety, although one letter “h” and the space between “Ah” and “Bra” were left out. These differences are too minor to take away the confusing similarity between the Domain Name and the Trademark. At least it cannot justify the conclusion that the Trademark is not recognizable in the Domain Name.
The top-level domain suffix “.tv” in the Domain Name will be disregarded under the confusing similarity test, as this is merely a technical requirement of registration.
Therefore the Complainant has proven that the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, any of the following circumstances may demonstrate the Respondent’s rights or legitimate interests to the Domain Name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice of the dispute, the Respondent’s use or demonstrable preparations to use the domain or a name corresponding to the Domain Name in connection of a bona fide offering of goods or services;
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the Domain Name without intent for a commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Under the given circumstances, the Panel will verify whether the Respondent is using the Domain Name in connection with a bona fide offering of goods or services in the sense of paragraph 4(c)(i) of the Policy.
The Complainant has undisputedly stated that the goods sold on the website linked to the Domain Name are considered to be counterfeit. Therefore the Panel finds that there is no bona fide offering of goods or services.
With regard to paragraph 4(c)(ii) of the Policy, the Panel notes that the Respondent does not appear to be commonly known in the normal course of business by the name “ahbra.tv”. On the website linked to the Domain Name, on which (allegedly counterfeit) Ahh Bra products can be purchased, no information is given on the identity of the retailer behind the website.
Regarding paragraph 4(c)(iii) of the Policy, the Panel notes that the Respondent is making commercial use of the Domain Name as (allegedly counterfeit) goods are being sold.
Consequently, the Panel is of the opinion that the Respondent has no rights or legitimate interests in the sense of paragraph 4(c) of the Policy and therefore the second condition has been fulfilled.
C. Registered and Used in Bad Faith
The Complainant has asserted that the website linked to the Domain Name offers for sale counterfeit products under a sign that is confusingly similar to the Trademark and this assertion has not been rebutted by the Respondent. In this Panel’s view, this is strong evidence of bad faith pursuant to paragraph 4(b)(iv) of the Policy. (Prada S.A. v. Domains for Life, WIPO Case No. D2004-1019).
The failure of the Respondent to respond to the Complaint in this case further supports an inference of bad faith (Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787).
Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <ahbra.tv> be transferred to the Complainant.
Willem J. H. Leppink
Dated: November 18, 2011