WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Evonik Industries AG v. Mary Savoy
Case No. D2013-2146
1. The Parties
The Complainant is Evonik Industries AG of Essen, Germany, represented by Gramm, Lins & Partner, GbR, Germany.
The Respondent is Mary Savoy of Austin, Texas, United States of America (“USA”).
2. The Domain Name And Registrar
The disputed domain name <evonik-energyservices.com> (the “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 December 11, 2013.
The Center transmitted its request for registrar verification to the Registrar on December 11, 2013. The Registrar replied on December 12, 2013, stating that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Respondent was the registrant, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name, that the Domain Name would expire on September 21, 2014 and would remained locked during this proceeding, that the Registration Agreement was in English, and that the Domain Name was registered to the Respondent on July 11, 2012. The Registrar provided the full contact details held for the Domain Name on its WhoIs database and did not dispute that the Respondent had submitted in the Registration Agreement to the jurisdiction of the courts where the Registrar was located for the adjudication of disputes concerning or arising from use of the Domain Name.
The Complainant informed the Center on December 12, 2013, that its email transmission of the Complaint to the Respondent had failed because the email account had been disabled or discontinued.
The Center verified that the Complaint satisfied the formal requirements of the 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”).
The Center formally notified the Respondent of the Complaint in accordance with paragraphs 2(a) and 4(a) of the Rules and the proceedings commenced on December 19, 2013. The notification was sent by email and courier to the email and street addresses provided in the Registrar’s WhoIs database as well as to firstname.lastname@example.org, but delivery was rejected in each case. On December 23, 2013, the Complainant informed the Center that delivery of the copy of the Complaint which it had sent by courier to the Respondent’s street address had been successful. The Panel is satisfied that the Complaint was duly notified to the Respondent in accordance with paragraph 2(a) of the Rules.
In accordance with paragraph 5(a) of the Rules, the due date for Response was January 8, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2014.
The Center appointed Jonathan Turner as the sole panelist in this matter on January 14, 2014. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant is a major supplier of specialty chemicals, energy and housing, formed out of the restructuring of the Degussa, Steag and RAG Immobilien groups in 2007. The Complainant has registered the mark EVONIK in Germany, the European Union and the USA, with priority dates in 2006 for Germany and the USA. The Complainant also registered the domain name <evonik.com> in 2006. The Complainant has supplied and promoted its goods and services, including energy services, under the mark EVONIK since it was launched on September 12, 2007.
The Domain Name was originally created on September 21, 2007, registered to the Respondent on July 11, 2012 and is currently directed to a website which purports to display a blog regarding home improvements.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its registered mark EVONIK, from which the Domain Name differs only in the addition of the descriptive words “energy services” and the generic Top-Level Domain (gTLD) suffix, “com”.
The Complainant states that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant notes that the Respondent does not have any trademark rights in the word “Evonik” and that the Complainant has not licensed the Respondent to use it. The Complainant submits that it is highly unlikely that the Respondent has ever been commonly known by the Domain Name. The Complainant further points out that the Domain Name must have been chosen for its similarity to the Complainant’s mark and that its use to misdirect potential visitors to the Complainant’s website to the Respondent’s website is not a bona fide offering of goods or services, nor legitimate noncommercial or fair use of the Domain Name. According to the Complainant these visitors are further misdirected from the Respondent’s website to third party commercial websites for which the Respondent presumably receives compensation. The Complainant adds that videos on the Respondent’s website appear to be created automatically and do not provide genuine new content.
The Complainant alleges that the Domain Name was registered and is being used in bad faith, in particular to mislead Internet users trying to reach the Complainant’s website and to attract them to the Respondent’s website for commercial gain creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the latter.
The Complainant requests that the Domain Name be transferred to it.
As stated above, the Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove; (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the 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. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
The Panel finds that the Domain Name is confusingly similar to the Complainant’s registered trademark EVONIK, from which it differs only in the addition of generic words describing a principal line of business of the Complainant and the gTLD suffix. The Panel considers that many Internet users would assume that the Domain Name locates a website of the Complainant. The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
The Panel finds on the undisputed evidence in the file that the Respondent has not used the Domain Name in connection with a bona fide offering of goods or services, nor made demonstrable preparations so to use it. In this regard, the Panel accepts the Complainant’s evidence that the current website at the Domain Name is not providing a genuine and bona fide service. Similarly, the Panel finds that the Respondent is not making a legitimate noncommercial or fair use of the Domain Name.
The Panel also accepts the Complainant’s statement that it has not licensed the Respondent to use the Domain Name and that the Respondent is not commonly known by the Domain Name.
On the material in the file the Panel is satisfied that the Respondent has no rights or legitimate interests in respect of the Domain Name. The second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
The Panel notes that the Domain Name was originally created shortly after the launch of the Complainant’s group under the mark EVONIK. The Panel further considers that the Domain Name refers specifically to the Complainant’s energy services business, so that its registration and use for any other purpose, not relating to the Complainant’s energy services business is likely to be deceptive. The Respondent is using the Domain Name for some other purpose, in that it is directed to a website which does not relate in any way to the Complainant’s energy services.
In addition, the Respondent’s website includes links to websites and videos promoting other products, including insulation products. The Respondent has not disputed the Complainant’s allegation that the Respondent is obtaining compensation for displaying these links. Accordingly, it appears that by using the Domain Name the Respondent has intentionally attempted to attract Internet users to her website for commercial gain by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of that website. In accordance with paragraph 4(b)(iv) of the UDRP this constitutes evidence that the Domain Name was registered and is being used in bad faith. There is no evidence in the file displacing this presumption.
In all the circumstances the Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied.
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 <evonik-energyservices.com> be transferred to the Complainant.
Date: January 27, 2014