WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kijiji International Limited v. MEMOS s.r.o.
Case No. D2015-1828
1. The Parties
The Complainant is Kijiji International Limited of Dublin, Ireland, represented by Gowling Lafleur Henderson, LLP, Canada.
The Respondent is MEMOS s.r.o. of Prague, Czech Republic.
2. The Domain Name and Registrar
The disputed domain name <kijiji-ca.com> (the "Domain Name") 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 October 13, 2015. On October 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 15, 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 October 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 17, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 18, 2015.
The Center appointed Ian Lowe as the sole panelist in this matter on November 25, 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 is a subsidiary of eBay Inc. and is the proprietor of numerous registered trademarks in respect of the mark KIJIJI in North America and the European Union, including Canada trademark number TMA707133 KIJIJI registered on February 12, 2008, United States of America ("United States") trademark number 3218713 KIJIJI registered on March 13, 2007 and Community Trademark number 4249454 KIJIJI registered on January 29, 2006.
eBay International AG owns and operates the online classifieds website at "www.kijiji.ca" (the "Kijiji Website"). The Kijiji Website was launched in 2005 and is Canada's most popular online classifieds website. It operates in over 100 cities across Canada and offers a convenient and easy way for people to buy, sell, trade and help each other out in areas such as goods, cars, services, housing, and jobs. The website has around 79 million total visits per month and 11 million unique monthly visitors. End users post over 200,000 ads on Kijiji every day and more than 65 million classified ads each year.
The Domain Name was registered on May 10, 2013. It initially resolved to a website featuring the banner "Kijiji.ca-Free Classifieds in Canada" together with information relating to Kijiji's classified services. The operator of the website identified itself as "Kijiji.ca" and the website prominently featured advertisements from which financial benefit could be derived.
The Complainant sent a cease-and-desist letter to the registrant of the Domain Name on April 30, 2015. According to the WhoIs information on that date, the registrant was [H] Gruener with email address "petr@[x].eu". Following the cease-and-desist letter, the website at the Domain Name was amended to resolve to a pay-per-click website featuring sponsored links to competitors of the Complainant. Shortly before the filing of the Complaint, based on Registrant information dated June 16, 2015, the Domain Name had been transferred to the Respondent, the "Registrant Name" being Petr Kudlacek whose email address is given as "info@[x].eu" and the website changed again to a website featuring the banner "Kijiji-Local online classified advertisements" and indicating that the website was operated by "Kijiji".
5. Parties' Contentions
The Complainant contends that the Domain Name is confusingly similar to its KIJIJI trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
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 that:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel readily accepts that the Complainant has long-standing, uncontested rights in respect of the KIJIJI mark both through long standing use in Canada and by virtue of its registered trademarks in Canada, the United States, and the European Union. Ignoring the ".com" suffix for the purpose of assessing the similarity of the Domain Name and the mark in which the Complainant has rights, the Domain Name comprises the entirety of the Complainant's mark KIJIJI together with "-ca". In the Panel's view, the addition of this geographic indicator for Canada does not detract from the distinctiveness of the KIJIJI mark but, indeed, adds to the confusing similarity with the Complainant's mark because of the Complainant's operation of the website at "www.kijiji.ca".
Accordingly, the Panel is satisfied that the Domain Name is confusingly similar to a mark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has made out a strong prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant submits that the previous registrant of the Domain Name is most likely to be closely associated with the Respondent by virtue of the close similarity between the text included in the previous registrant's website and the text on the current website at the Domain Name and in light of the similarity in email addresses. The Domain Name has been used variously for a website referring to the Complainant's services apparently identifying the operator as the Complainant, and for a website comprising pay-per-click links to third parties including competitors of the Complainant. In the Panel's view, none of these activities could possibly give rise to rights or legitimate interests on the part of the Respondent in a domain name comprising the distinctive KIJIJI mark.
The Respondent has chosen not to respond to the Complaint or to put forward any explanation as to any rights or legitimate interests on its part. It has therefore failed entirely to dispel the strong prima facie case raised by the Complainant. In the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
In light of the nature of the KIJIJI mark and the nature of the use of the Domain Name by the Respondent (even leaving aside the previous uses by the Respondent's predecessor), the Panel is in no doubt that the Respondent must have had the Complainant and its rights in the KIJIJI mark in mind when it registered the Domain Name. In any event the Panel finds on the balance of probabilities that the Respondent is associated with the previous registrant. In the Panel's view, the Respondent has used the Domain Name comprising the Complainant's famous mark to draw in Internet users and redirect them to other websites either for obvious financial gain or for purposes that the Panel infers are very likely to be for commercial gain, or to pay-per-click advertising for third-party websites, again for commercial gain. The Panel considers that this amounts to paradigm bad faith registration and use.
Accordingly, the Panel finds that the Domain Name was registered and is being used 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 <kijiji-ca.com> be transferred to the Complainant.
Date: December 10, 2015