WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
OLX, Inc. v. Berry Mhlongo
Case No. D2014-1415
1. The Parties
The Complainant is OLX, Inc. of New York, New York, United States of America, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Berry Mhlongo of Tzaneen, Limopo, South Africa.
2. The Domain Name and Registrar
The disputed domain name <olx-delhi.com> 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 18, 2014. On August 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 18, 2014, 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 20, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 9, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 10, 2014.
The Center appointed George R. F. Souter as the sole panelist in this matter on September 16, 2014. 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 leading free online classifieds platform provider. The Complainant’s services are available in over 107 countries and in over 42 languages. The Complainant’s platform, operated under its OLX trademark, is the No.1 online classifieds platform in, inter alia, India. The Complainant maintains offices in various major cities internationally, including Delhi. The Complainant’s platform receives more than 100 million monthly unique users, generating over 1.8 billion monthly page views, or 60 million page views per day.
Details of extensive registrations of its OLX trademark have been supplied to the Panel.
The disputed domain name was registered on July 15, 2014.
5. Parties’ Contentions
The Complainant alleges that the disputed domain name is confusingly similar to its OLX trademark, containing its OLX trademark with the mere addition of a hyphen followed by the descriptive or non-distinctive element “delhi”.
The Complainant alleges that the Respondent has no rights or legitimate interests in its OLX trademark, in particular that the Respondent is not generally known by the disputed domain name, and that no license or authorization of any kind has been given by the Complainant to the Respondent to use the OLX trademark.
The Complainant contends that the disputed domain name has been registered in bad faith, and is being used in bad faith in connection with a website, the activity on which is “strikingly similar” to the Complainant’s business
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(i) the disputed domain name is 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 name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is well-established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators (e.g. “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a trademark and a domain name. The Panel agrees with this view and considers the gTLD “.com” indicator to be irrelevant in the present case.
The Panel notes that the Complainant’s rights in its OLX trademark have been recognized by panels in a number of previous decisions under the UDRP. Further, it is well-established in prior decisions under the UDRP that the mere addition to a trademark in which the complainant has clear rights of a descriptive or non-distinctive element is insufficient to avoid a finding of confusing similarity. In the Panel’s opinion, the name of a famous and populous city such as Delhi would qualify as a descriptive or non-distinctive element. Accordingly, the Panel finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
It is the predominant view of panels in previous UDRP decisions, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. The Respondent did not take the opportunity afforded to him to advance any claim to rights or legitimate interests in the disputed domain name. The Panel, therefore, accepts the Complainant’s contentions (above) under paragraph 4(a)(ii) of the Policy as establishing an un-rebutted prima facie case, and, accordingly, finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Panel is of the view that the finding that the Respondent has no rights or legitimate interests in the disputed domain name, may lead, in appropriate circumstances, to a finding that the disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the disputed domain name was, in his opinion. “Inspired” by the Complainant’s OLX trademark, as making it appropriate for the Panel to find that the disputed domain name was registered in bad faith and the Panel so finds.
The Panel considers that the Respondent has been using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website operated under the disputed domain name, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website, as set out in paragraph 4(b)(iv) of the Policy. Consequently, the Panel finds that the disputed domain name is being used in bad faith, and that the Complainant has satisfied the requirement of paragraph 4(a)(iii) of the Policy.
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 name <olx-delhi.com> be transferred to the Complainant.
George R. F. Souter
Date: September 30, 2014