WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Covestro Deutschland AG v. Cenk Erdogan, This domain name is for sale
Case No. D2016-1886
1. The Parties
The Complainant is Covestro Deutschland AG of Leverkusen, Germany, represented by BPM Legal, Germany.
The Respondent is Cenk Erdogan, This domain name is for sale of Ankara, Turkey.
2. The Domain Name and Registrar
The disputed domain name <lensavis.com> (the "Disputed Domain Name") is registered with NameSilo, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 16, 2016. On September 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 16, 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 proceedings commenced on October 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 26, 2016.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on November 2, 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, Covestro Deutschland AG, is a polymers company, operating four sites in Germany with a total of some 6,200 employees, representing roughly 40 percent of the Complainant's global workforce of approximately 15,700 full-time employees. The Complainant has been a separate legal entity since September 2015. It arose out of the German chemicals and pharmaceuticals company Bayer AG. The Complainant's stock is included in the German MDAX, a stock index which lists the 50 Prime Standard shares from German companies in sectors excluding technology that rank immediately below the companies included in the DAX index, as well as in the international STOXX Europe 600. The company is represented at 30 locations worldwide, inter alia, in Germany, China, Thailand, and the United States of America.
The Complainant is the holder of the following German trade mark:
- LENSAVIS, word mark, registered with the German Patent and Trademark Office on August 11, 2016 under number 302016022271 in classes 1 and 9.
The Complainant filed the following European Union trade mark application:
- LENSAVIS, word mark, applied for with the European Union Intellectual Property Office ("EUIPO") on August 2, 2016 under number 015716178 in classes 1 and 9.
The Complainant uses its LENSAVIS trademark for raw materials that are utilized for the manufacturing of goods in optical grade quality.
The Disputed Domain Name <lensavis.com> was registered on August 2, 2016. It resolves to a website offering the Disputed Domain Name for sale for the amount of USD 930.
5. Parties' Contentions
The Complainant considers that the Disputed Domain Name is identical or confusingly similar to trademarks and service marks in which it claims to have rights. The Complainant further claims that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. According to the Complainant, the Respondent has not used the Disputed Domain Name in connection with a legitimate use. Also, according to the Complainant, the Respondent has not been commonly known by the Disputed Domain Name. Finally, the Complainant claims that the Disputed Domain Name was registered and used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that the Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer a domain name. As the proceedings are administrative, the standard of proof is the balance of probabilities.
Thus for the Complainant to succeed, it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
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.
The Panel will deal with each of these requirements in turn.
A. Identical or Confusingly Similar
To prove this element, the Complainant must first establish that there is a trademark or service mark in which it has rights. The Complainant has established that there is a LENSAVIS trademark in which it has rights.
The Disputed Domain Name fully incorporates the Complainant's LENSAVIS trademark and adds the ".com" Top-Level Domain. It is well established that the Top-Level Domain is generally not an element of distinctiveness and typically not taken into consideration when evaluating the identity or confusing similarity between a complainant's trademark and the domain name. Accordingly, the Panel finds that the Disputed Domain Name is identical to the Complainant's trademark and the Complainant has made out the first of the three elements of the Policy that it must establish.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, a complainant has the burden of establishing that the respondent has no rights or legitimate interests in respect of the disputed domain name.
It is well established under the Policy that it is sufficient for a complainant to make a prima facie showing that the respondent has no rights or legitimate interests in the disputed domain name in order to place the burden of production on the respondent. See, Champion Innovations, Ltd. v. Udo Dussling (45FHH), WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
The Panel notes that the Respondent has not apparently been commonly known by the Disputed Domain Name and that the Respondent does not seem to have acquired trademark or service mark rights. The Respondent's use and registration of the Disputed Domain Name was not authorized by the Complainant. There are no indications that a connection between the Complainant and the Respondent existed.
In fact, the Respondent is not making any active use of the Disputed Domain Name, apart from offering it for sale. The Respondent has not come forward rebutting the Complainant's allegations or otherwise asserting any rights or interests.
Therefore, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
The Complainant must prove on the balance of probabilities both that the Disputed Domain Name was registered and is being used in bad faith (See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd, WIPO Case No. D2006-1052).
In the instant case, the Panel finds that the Respondent must have had knowledge of the Complainant's rights in the LENSAVIS trademark at the moment it registered the Disputed Domain Name. The Disputed Domain Name was registered on the same day the Complainant applied for the LENSAVIS trade mark with the EUIPO. The Complainant's trademark appears to be an invented word, solely connected with the Complainant.
In the Panel's view, it is unlikely that the registration of the Disputed Domain Name on the same day as the trademark application is a coincidence. The Respondent seems to have engaged in a pattern of registering third parties' trademarks as a domain name on, or shortly after, their application date with the EUIPO. This registration pattern seems inspired by the intent to prevent the Complainant from reflecting its trademark in a corresponding domain name, unless the Complainant purchases the Disputed Domain Name for an amount that exceeds the costs directly related to the Disputed Domain Name.
Finally, by failing to respond to the Complaint, the Respondent did not take any initiative to contest the foregoing. Pursuant to paragraph 14 of the Rules, the Panel may draw the conclusions it considers appropriate.
In view of the above, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the Disputed 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 disputed domain name <lensavis.com> be transferred to the Complainant.
Flip Jan Claude Petillion
Date: November 21, 2016