WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sixt AG v. DSA QWE Inc.
Case No. D2013-0504
1. The Parties
The Complainant is Sixt AG of Pullach, Germany, represented by Damm & Mann, Germany.
The Respondent is DSA QWE Inc. of Belize City, Belize.
2. The Domain Name And Registrar
The disputed domain name <sixt-supercars.com> (“the Domain Name”) is registered with eNom (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2013. On March 13, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 13, 2013, 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 for the Domain Name.
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 March 15, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 4, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 8, 2013.
The Center appointed Warwick Smith as the sole panelist in this matter on April 12, 2013. 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 German corporation which provides rental vehicle services, whether directly or through partner companies, in numerous countries.
The Complainant is the registered proprietor of a number of German, United States, European Union, and international registrations of the mark SIXT. It is not necessary to refer to them all – it is enough for the purposes of this decision to refer to two of them. First, there is the Complainant’s registration of the word mark SIXT in the United States, covering a number of services in international class 39, including the renting and leasing of motor cars and trucks and their accessories, the provision of travel agency services, and the operation of sightseeing and travel guide services. This registration refers to a first use in commerce date of February 18, 1998, and the registration has effect from November 5, 1999.
Secondly, the Complainant has registered a stylized form of its SIXT mark in the United States, in international class 39 (“the figurative SIXT mark”). The figurative SIXT mark has been registered in the United States, with effect from November 5, 1999.
The Complainant has not authorized the respondent to use its SIXT mark, and the Respondent is neither a distributor of the Complainant nor authorized in any way to rent vehicles for the Complainant, or to use the Complainant’s marks for advertising purposes. The Complainant says that the Respondent is completely unknown to it.
The Respondent and the Domain Name
The Domain Name was registered on March 2, 2013.
The Complainant submitted a screenshot taken from the website at the Domain Name (“the Respondent’s Website”). Although the screenshot displays the Respondent’s Website in the German language (of which the Panel has only limited knowledge), a number of things are clear. First, the home page of the Respondent’s Website was prominently headed “SIXT supercars”, with the “Sixt” written in a distinctive stylized form identical or nearly identical to the figurative SIXT mark. Secondly, the screenshot appears to have been taken on or about March 7, 2013, and it appears to offer motor vehicles for rental. The copy of the Respondent’s Website produced by the Complainant shows a picture of a red PORSCHE Carrera, with a promotional slogan referring to “your dream car” (“deinen traumwagen”), above a price in Euros.
For comparison purposes, the Complainant produced a screenshot of the home page of its own website at ‘’www.sixt.de’’ (“the Complainant’s Website). The format of the Complainant’s Website, including black and orange coloring, single image of a car with a promotional statement and the rental price expressed in Euros, is very similar to the format of the Respondent’s Website as it appeared on or about March 7, 2013.
The Complainant also produced a copy of a legal notice posted on the Respondent’s Website, which showed the name of the operator of the Respondent’s Website as the Complainant. The notice also appeared to contain a copyright claim in the name of the Complainant. The Complainant says that the Respondent’s Website contains a link to the English-language general terms and conditions posted on the Complainant’s Website.
According to the Complaint, potential and current customers of the Complainant can complete virtually the entire ordering process through the Respondent’s website, from indicating the desired duration of the rental period and the location for collection, to choosing from a variety of luxury-class rental vehicles. Any customer selecting a vehicle is then directed to another web page, where the customer is asked to enter personal details as well as bank and credit card information. The Complainant produced a copy of this page, and although it was in the German language, and no translation was provided, the Panel could readily discern that the user was expected to enter his or her credit card details, and then proceed to a “book now” (“buchen jetz”) button to complete what, on its face, appeared to be a fairly typical online booking process.
The Complainant says that that is not what it was at all. An Internet user clicking on the “book now” button could not make a rental vehicle booking with anyone – completing the process did no more than provide the operator of the Respondent’s Website with the user’s personal details.
5. Parties’ Contentions
The Complainant contends:
1. The Domain Name is confusingly similar to the Complainant’s SIXT mark.
2. The Respondent has no rights or legitimate interests in respect of the Domain Name, which it is using for an illegal purpose (luring Internet users to the Respondent’s website in order to obtain their bank and credit card details, with fraudulent intent). The Respondent is also infringing the Complainant’s SIXT mark. The Respondent’s use of the Domain Name deliberately creates the confusing impression that “supercars” can be rented from the Complainant through the Respondents website.
3. The Domain Name was registered and is being used in bad faith. The Respondent’s Website is a phishing website which targets current or potential German customers of the Complainant, and is used for the sole purpose of obtaining the bank and credit card details of such customers, with fraudulent intent. Furthermore, the Respondent’s Website has been deliberately designed to be taken for the Complainant’s website. The Respondent’s use of the Domain Name is likely to detract significantly from the good international reputation of the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. What the Complainant Must Prove Under the Policy
Under paragraph 4(a) of the Policy, a complainant has the burden of proving the following:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) That the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules requires the panel to: “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any Rules and principles of law that it deems applicable”.
Where a respondent has not submitted a response, paragraph 5(e) of the Rules requires the Panel to “decide the dispute based on the complaint”. Under paragraph 14(b) of the Rules, the Panel may draw such inferences from a respondent’s failure to comply with the Rules (e.g. by failing to file a response), as the Panel considers appropriate.
B. Identical or Confusingly Similar
The Complainant has sufficiently proved this part of the Complaint. The Complainant is the registered proprietor of the word mark SIXT and the figurative SIXT mark in the United States, and the SIXT mark has been incorporated in full (and is recognizable as such) within the Domain Name. The inclusion of the hyphen and the additional word “supercars” in the Domain Name is not sufficient for the Respondent to avoid a finding of confusing similarity: “supercars” is a generic, dictionary word only, and “sixt” is the dominant component of the Domain Name (the hyphen serves only to separate the SIXT mark from the generic expression which follows it, and thus emphasizes “sixt” as the dominant component of the Domain Name).1
C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of Paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] 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) Where [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 trade mark or service mark rights; or
(iii) Where [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 trade mark or service mark at issue.
“a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If a respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP… If the respondent does come forward with some allegations or evidence of relevant rights or legitimate interest, the panel then weighs all the evidence, with the burden of proof always remaining on the complainant.”
In this case, the Domain Name is confusingly similar to the Complainant’s SIXT mark, and the respondent has been given no right to use that mark, whether in a domain name or otherwise. The Complainant’s uncontradicted evidence shows that the Respondent has established a website at the Domain Name which has been “dressed up” to resemble the Complainant’s website. There is nothing in the evidence to suggest that the Respondent (or any business or organization operated by it) might be “commonly known” by the Domain Name, and therefore nothing to suggest the possibility of a defense under paragraph 4(c)(ii) of the Policy.
The foregoing combination of circumstances sufficiently establishes a prima facie case that the Respondent has “no rights or legitimate interests” in the Domain Name, so the burden of production shifts to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interest in the Domain Name. The Respondent having failed to file any Response that burden has not been discharged, and the Complainant’s prima facie proof must prevail.
The Panel accordingly finds that the Respondent has no rights or legitimate interests in respect of the Domain Name .
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances include:
“(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 on-line 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 use of the Complainant’s SIXT mark in the Domain Name, the copying of the figurative SIXT mark on the Respondent’s Website, the reproduction of the colors and layout of the Complainant’s website, the copying of the Complainant’s legal notice, the link to the Complainant’s general terms and conditions, and the simple fact that the Respondent’s Website offers a non-existent service, all leave no room for doubt that the Respondent has registered and used the Domain Name in bad faith. The Respondent’s website has all the appearances of a phishing website, designed to obtain Internet users’ credit card and other details for fraudulent or other bad faith purposes, and in the absence of any Response the panel accepts the Complainant’s submission that that is indeed the purpose for which the Respondent’s Website was established and is being used
In the absence of any Response, the panel infers that the Respondent’s ultimate purpose in registering the domain name and creating the counterfeit website was probably to derive commercial gain. The circumstances therefore fall within paragraph 4(b)(iv) of the Policy.2
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 <sixt-supercars.com> be transferred to the Complainant.
Date: April 26, 2013
1 The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview, 2.0”), summarizes the consensus view of UDRP Panels on the “identical or confusingly similar“ question, in the following terms at paragraph 1.2:
“The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms …typically being regarded as insufficient to prevent threshold internet user confusion.”
2 Even if they did not, the list of circumstances which may be evidence of bad faith registration and use set out in paragraph 4(b) of the Policy is not exhaustive, and it would be difficult to imagine a clearer case of bad faith registration and use than this one, where the Respondent has effectively masqueraded as the Complainant in an attempt to trick Internet users into providing it with credit card and other personal details in which it could have no legitimate interest.