WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Visma AS v. Intdomain, Apexed
Case No. D2015-1523
1. The Parties
The Complainant is Visma AS of Oslo, Norway, represented by Advokatfirmaet Wiersholm, Norway.
The Respondent is Intdomain, Apexed of Burgenland, Austria.
2. The Domain Name and Registrar
The disputed domain name <visma.org> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 26, 2015. On August 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 27, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 3, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 23, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 24, 2015.
The Center appointed Marilena Comanescu as the sole panelist in this matter on October 16, 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.
The language of the proceeding is English.
4. Factual Background
The Complainant is a provider of software products and Internet-based services related to, inter alia, enterprise resource planning, customer relationship management and human resource management and payroll. According to the Complainant's assertions, its total group revenues for 2014 were of approximately USD 800 million, the Complainant having more than 6,700 employees and 400,000 customers in Europe.
The Complainant is the owner of several trademark registrations for VISMA, such as the Community Trademark Registration No. 002554400 registered on June 27, 2003 for services in classes 35 and 36.
The Respondent has chosen not to submit any response to the contentions raised in the Complaint.
The disputed domain name <visma.org> was registered on July 31, 2015 and, at the time of filing the Complaint, was used in connection with a pay-per-click website offering competing services to those offered by the Complainant and links to Complainant's own websites and distributors.
The Respondent was involved in three prior UDRP proceedings initiated against it, all decided in the favor of the complainants, see Tyson Foods, Inc. v. Intdomain, Apexed, WIPO Case No. D2014-1316; Pfizer Inc. and Wyeth LLC v. Intdomain, Apexed, WIPO Case No. D2015-0187; and Actelion Pharmaceuticals Ltd v. Intdomain, Apexed, WIPO Case No. D2015-1426.
5. Parties' Contentions
The Complainant contends that the disputed domain name is identical to its trademark; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion And Findings
In view of the absence of any reply to the Complaint by the Respondent, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are shown:
(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 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
The Complainant has rights in the VISMA trademark, holding registrations since 1997.
The disputed domain name <visma.org> reproduces the Complainant's mark exactly.
It is well established in decisions under the UDRP that generic Top-Level Domains (e.g., ".com", ".biz", ".org") are typically irrelevant to the consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <visma.org> is virtually identical to the Complainant's trademark VISMA, pursuant to the Policy, paragraph 4(a)(i), and that this Policy element is made out.
B. Rights or Legitimate Interests
The Complainant proved rights in VISMA trademark and further asserts that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial use or a bona fide offering of goods or services. In line with the previous UDRP decisions, the Panel accepts that the Complainant has provided a prima facie case of the Respondent's lack of rights or legitimate interests in relation to the disputed domain name, and the burden of production shifts to the Respondent. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
The Respondent chose not to challenge the Complainant's allegations and did not come forward with any allegations or evidence of relevant rights or legitimate interests.
At the same time, at the time the Complaint was filed, the Respondent was using the disputed domain name in connection with a website offering sponsored links for the sale of goods and services related to software containing, inter alia,products and services of the Complainant's competitors. PPC links may be permissible in some circumstances, but would not of themselves confer rights or legitimate interests arising from a "bona fide offering of goods or services" or from "legitimate noncommercial or fair use" of the disputed domain name, especially where resulting in a connection to goods or services competitive with those of the rights holder. See paragraph 2.6 of the WIPO Overview 2.0.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <visma.org>, pursuant to the Policy, paragraph 4(a)(ii), and that this Policy element is made out.
C. Registered and Used in Bad Faith
The Complainant's trademark VISMA has been used since 1997, being also registered as a Community Trademark since 1998, while the Respondent is apparently located in Austria.
The disputed domain name was created in 2015 and incorporates the VISMA trademark in its entirety.
Accordingly, it is not difficult for the Panel to infer that the Respondent had knowledge of the Complainant's trademark and business, that the disputed domain name was registered with the Complainant's trademark in mind and that the aim of the registration was to take advantage of the confusion between the disputed domain name and the Complainant's rights.
At the time of filing the Complaint the disputed domain name was used in connection with a pay-per-click website offering competing services to those offered by the Complainant and links to the Complainant's own websites and distributors. These facts support the inference that the purpose of the Respondent was diversion of traffic from the Complainant to itself via confusion with the Complainant's mark for the Respondent's own commercial gain, at the same time being likely to disrupt the Complainant's business and damage its reputation. In the eyes of this Panel and based on the records in this file, the redirection at some times to the Complainant's actual website cannot constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name but to the contrary, this fact was likely to increase the confusion for Internet users, making them believe that the disputed domain name was somehow controlled or affiliated with the Complainant. Furthermore, the Complainant did not grant any right to the Respondent to incorporate its trademark in a domain name and had no control over the content displayed on website corresponding to the disputed domain name. Such facts constitute bad faith under paragraph 4(b)(iv) of the Policy.
The Respondent has been involved in at least another three UDRP cases as respondent, see cases cited under Section 4 above. Such circumstances indicate that the Respondent registered the disputed domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name and demonstrate that the Respondent is engaged in a pattern of such conduct. Such facts constitute bad faith under paragraph 4(b)(ii) of the Policy.
Further, the Respondent did not put forward any justification for choosing and using "visma" in the disputed domain name. Given the other circumstances of the case, the silence of the Respondent may be considered as further evidence of bad faith behavior in registering and using the disputed domain name.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name <visma.org> in bad faith, pursuant to the Policy, paragraph 4(a)(iii), and that this Policy element is made out.
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 <visma.org> be transferred to the Complainant.
Date: October 26, 2015