WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Palfinger Aktiengesellschaft v. Ly Huy Cuong
Case No. D2016-0607
1. The Parties
The Complainant is Palfinger Aktiengesellschaft of Bergheim, Austria, represented by Patentwälte Torggler & Hofinger, Austria.
The Respondent is Ly Huy Cuong of Binh Duong, Viet Nam.
2. The Domain Name and Registrar
The disputed domain name <palfingervietnam.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 30, 2016. On March 30, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 31, 2016, 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 proceeding commenced on April 8, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 28, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 29, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 13, 2016. 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 company founded in 1932 and incorporated in Austria, and one of the leading international manufacturers of hydraulic lifting systems, marketed and sold worldwide (including in Viet Nam) under the trade mark PALFINGER (the "Trade Mark"). The Complainant is the owner of several international and national registrations for the Trade Mark, including international registration number 721163 dating from September 8, 1999 (and designating Vietnam).
The Respondent is apparently an individual located in Viet Nam.
C. The Disputed Domain Name
The disputed domain name was registered on April 15, 2015.
D. The Website at the Disputed Domain Name
The disputed domain name is resolved to a Vietnamese language website which reproduces the logo version of the Trade Mark and promotes and offers for sale loading cranes for vehicles in direct competition with those manufactured and sold by the Complainant (the "Website").
5. Parties' Contentions
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name comprises the Trade Mark in its entirety, together with the non-distinctive geographical indicator "Vietnam", which is descriptive of the country in which the Respondent is apparently based and, in the Panel's opinion, heightens the risk of confusion given the language of the Website is Vietnamese.
The Panel finds that the disputed domain name is confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, which, without the Complainant's authorisation, reproduces the logo version of the Trade Mark; and promotes and offers for sale loading cranes for vehicles in direct competition with those of the Complainant.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the evidence of the Respondent's use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been 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 disputed domain name <palfingervietnam.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: May 25, 2016