WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SALUS Haus Dr. med. Otto Greither Nachf. GmbH & Co. KG v. Wa Tai
Case No. D2015-0220
1. The Parties
The Complainant is SALUS Haus Dr. med. Otto Greither Nachf. GmbH & Co. KG of Bruckmuehl, Germany, represented by Guangsheng & Partners, China.
The Respondent is Wa Tai of Taiwan Province of China.
2. The Domain Name(s) and Registrar(s)
The disputed domain name <saluscn.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 February 11, 2015. On February 11, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 11, 2015, 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 February 17, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 9, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 11, 2015.
The Center appointed Karen Fong as the sole panelist in this matter on March 18, 2015. 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, SALUS Haus Dr. med. Otto Greither Nachf. GmbH & Co. KG, founded in 1916, is a German leading producer of different tea varieties, numerous tonics, tinctures, elixirs, fresh plant juices, herbal tablets, coated tablets and capsules and established distribution to and/or presence in more than 70 countries.
The Complainant owns worldwide registrations for the trade mark SALUS ("the Trade Mark") including China and Taiwan Province of China and the Chinese version of the "莎露斯" in China and Taiwan Province of China. The Complainant has extensively used these marks in connection with its products which has an approximate worldwide turnover of EUR 100 million. The Complainant or its authorised subsidiaries also own the domain names <salus-haus.com> (since January 24, 1997) and <saluschina.com> (since January 15, 2010).
The Domain Name was registered by the Respondent in April 15, 2014. The Domain Name is attached to a website ("the Website") which bears the SALUS trade mark in a stylized form almost identical to the Complainant's use of the Trade Mark on its own website. The Respondent purports to be an official partner of the Complainant in China and offers for sale the Complainant's products. The Complainant has previously prevailed in a UDRP complaint against the Respondent for the domain names <floradix-iron.com>, <floradixkindervital.com> and <salusfloradix.com> in SALUS Haus Dr. med. Otto Greither Nachf. GmbH & Co. KG v. wa tai, WIPO Case No. D2014-0682).
5. Parties' Contentions
The Complainant contends that the Domain Name is confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests with respect to the Domain Name and that the Domain Name was registered and being used in bad faith. The Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and being used in bad faith.
B. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has registered rights to the Trade Mark.
The threshold test for confusing similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. In this case the Domain Name comprises the Trade mark and the geographical name "cn" which is the recognized abbreviation for "China". For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic domain suffix. Further, the "cn" at the end of the Trade Mark SALUS does not negate the identity or confusing similarity encouraged by the Respondent's use of Trade Mark in the Domain Name.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent 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 commercial gain, to misleadingly divert consumers, or to tarnish the trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") that 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 the respondent does come forward with some allegations of evidence of relevant right or legitimate interest, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.
The Complainant alleges that the Respondent has no connection or affiliation with it nor has the Respondent received any licence to use the Trade Mark in a domain name or in any other manner. The Respondent has never been known by the Domain Name and has no legitimate interest in the Trade Mark.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
To succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent was aware of the Trade Mark when it registered the Domain Name. The Complainant has provided sufficient evidence that the registration of the Domain Name post dates the registration and use of the Trade Mark. The Trade Mark is well known because of the Complainant's extensive use globally and the Respondent has also registered domain names that have been found to be identical or confusingly similar to the Complainant's other trade marks. Hence it would be inconceivable that the Respondent had no knowledge of the Trade Mark when the Domain Name was registered. Thus, the Panel concludes that the Respondent deliberately registered the Domain Name in bad faith.
The Panel also concludes that the actual use of the Domain Names was in bad faith. The Website indicates that the Respondent is a partner of the Complainant in China which is not true. It also offers to sell the Complainant's products through this intentional misrepresentation of affiliation with the Complainant.
From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Respondent's Website are and the products sold on them are those of or authorised or endorsed by the Complainant. The above is clearly bad faith under paragraph 4(b)(iv) of the Policy and the Panel concludes that the Respondent's registration and use of the Domain Names were 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 <saluscn.com> be transferred to the Complainant.
Date: April 2, 2015