WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Partner Power International A/S v. Eloy Nolivos
Case No. D2012-1655
1. The Parties
The Complainant is Partner Power International A/S of Hørsholm, Denmark, of Denmark, represented by Rønne & Lundgren Law Firm, Denmark.
The Respondent is Eloy Nolivos of Boston, Massachusetts, United States of America (“USA”).
2. The Domain Name and Registrar
The disputed domain name <partner-power.net> (“Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 17, 2012. On August 20, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 22, 2012, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 27, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2012.
The Center appointed Jon Lang as the sole panelist in this matter on September 25, 2012. 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.
On October 19, 2012, the Center notified the Administrative Panel Procedural Order No. 1 (the “Panel Order”) concerning the rights relied on by the Complainant, in particular, seeking clarification of whether such rights were in the nature of registered or unregistered rights and, if the later, inviting the Complainant to provide further evidence in support. The Complainant submitted its reply on October 24, 2012. Provision was made for the Respondent to respond, which it did not.
4. Factual Background
The Complainant was established in 2000 and is an international Microsoft Dynamics implementation and services provider with partner offices in more than 55 countries worldwide, including several in the USA. The Complainant operates under the trademark PARTNER POWER and mainly offers its services through the domain names <partnerpowerinternational.com> and <partnerpower.biz>.
Little is known about the Respondent and it has not participated in these proceedings.
The Respondent registered the Domain Name, <partner-power.net> on April 19, 2011.
5. Parties’ Contentions
The Complainant has no registered trademark for PARTNER POWER, but given its active and continuous use of the Partner Power name as its trademark on its websites and in its brochures since 2002, it has unregistered trademark rights in that name.
The Domain Name is confusingly similar to the Complainant’s trademark PARTNER POWER, the only difference being the hyphen between the words “Partner” and “Power”. The Domain Name is also confusingly similar to the Complainant’s domain name <partnerpower.biz>.
The Respondent has no rights or legitimate interests in the Doman Name. A comparison of a screen shot of the website at the Domain Name (the Respondent’s website) with that of the Complainant’s website demonstrates that the Respondent has copied the contents on the Complainant’s site, including its logo. This illustrates that the Respondent has not registered the Domain Name with any intention of offering bona fide goods or services or with any intention of making any noncommercial or fair use of the Domain Name. In copying the Complainant’s website, the Respondent must have been aware that it did not have any rights or legitimate interests in respect of the Domain Name.
Given that the Complainant’s website and logo have been copied by and used in connection with the Domain Name, it is the Complainant’s position that the Domain Name has been registered and used by the Respondent in bad faith. The Respondent, for commercial gain, is attempting to attract Internet users to its own website by creating a likelihood of confusion with the Complainant’s trademark and the Domain Name which causes disruption to the Complainant’s legitimate business activities.
The Respondent did not reply to the Complainant’s contentions set out in the Complaint or in the response to the Panel Order.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is: (i) identical or confusingly similar to a trademark or service mark in which a complainant has rights; and (ii) that a respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. A complainant must prove each of these three elements.
A. Identical or Confusingly Similar
The first question to consider is whether the Complainant has rights for the purposes of the Policy.
The Complainant has confirmed, pursuant to the Panel Order, that it has no registered trademark for PARTNER POWER but relies on unregistered rights in that name. The Complainant appears to have used the words “Partner Power” as a distinctive identifier of its services and has provided evidence of the nature and extent of such use in marketing, as well as a certificate of registration of the Complainant dated May 29, 2012. Accordingly, the Panel accepts that it is more likely than not that the Complainant has unregistered trademark rights in the words “Partner Power” for the purposes of the Policy.
Given that finding, the Panel must go on to consider whether the Domain Name is identical or confusingly similar to the Complainant’s trademark.
The Domain Name is not quite identical to the Complainant’s trademark given the existence of the hyphen between “Partner” and “Power” (which is not present in the trademark). This means that the Panel must consider the question of confusing similarity.
Under the UDRP, the test for confusing similarity involves a comparison between the trademark and the domain name to determine likelihood of Internet user confusion. To satisfy the test, the trademark to which the domain name is said to be confusingly similar would generally need to be recognisable as such within the domain name. The addition of common, dictionary, descriptive, or negative terms are usually regarded as insufficient to prevent Internet user confusion. Application of the confusing similarity test under the UDRP typically involves a comparison, on a visual or aural level, between the trademark and the domain name.
Given that the PARTNER POWER mark is readily recognisable within the Domain Name and in fact constitutes the Domain Name except for the hyphen (and the gTLD “.net” which may be disregarded for purposes of the Policy), the Panel is satisfied that the Domain Name is confusingly similar to the Complainant’s trademark.
Even if one were to adopt a possibly more stringent test and require, as some UDRP panels have done, a risk that Internet users may actually believe that there is a real connection between the Domain Name and the Complainant and/or its goods and services, the Complainant would succeed in showing confusing similarity. The impression created by the Domain Name may well give rise to the possibility that Internet users would think that the owner of the Domain Name is in fact the owner of the Complainant’s mark to which it is almost identical, or that there is some form of association between the Respondent and the Complainant.
The Panel finds that the Domain Name is confusingly similar for the purposes of the Policy and thus the element of paragraph 4(a)(i) of the Policy has been established.
B. Rights or Legitimate Interests
By its allegations in the Complaint, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name and, as such, the burden of production shifts to the Respondent to come forward with appropriate arguments or evidence demonstrating that it does in fact have such rights or legitimate interests. The Respondent has not done so and the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent lacks rights or legitimate interests in the Domain Name.
A respondent can show that it has rights or legitimate interests in a domain name in various ways even where it is not licensed by or affiliated with a complainant. For instance, it can show that it is making a 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. A respondent can also show that it is using a domain name in connection with a bona fide offering of goods or services or is commonly known by the domain name. However, in the circumstances of this case, where the Respondent has copied various aspects of the Complainant’s website, including its logo, the Panel cannot conceive of a legitimate use of the Domain Name by the Respondent or of a legitimate reason for registration of the Domain Name in the first place.
The contentions of the Complainant by which it has made out a prima facie case that the Respondent has no rights or legitimate interests have not been contradicted or challenged, and have certainly not been cast into doubt by a review of the case materials. Accordingly, the Panel finds that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
There would appear to be no legitimate explanation for the Respondent’s choice of Domain Name. It seems clear to the Panel that the intention of the Respondent was to unfairly capitalise on or otherwise take advantage of the Complainant’s mark.
One way a complainant may demonstrate bad faith registration and use, is to show that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it. There can be little doubt here that there is a risk of such confusion in this case.
In the circumstances the Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name in bad faith.
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 <partner-power.net> be transferred to the Complainant.
Date: October 29, 2012