WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Migros-Genossenschafts-Bund v. James Okogb, Micrio
Case No. D2017-0647
1. The Parties
The Complainant is Migros-Genossenschafts-Bund of Zürich, Switzerland, represented by SILKA Law AB, Sweden.
The Respondent is James Okogb, Micrio of Ado Ekiti, Nigeria.
2. The Domain Name and Registrar
The disputed domain name <migrosbonline.com> is registered with Upperlink Limited (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 30, 2017. On March 31, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 31, 2017, 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 April 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 26, 2017.
The Center appointed Leon Trakman as the sole panelist in this matter on May 4, 2017. 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 serves as the umbrella organization ten of regional Migros Cooperatives. One of the biggest department stores in Switzerland, Migros Genossenschaft bund, offers a wide range of food, non-food products and services relating to wellness, travel and catering. These include travel agencies, cultural institutions, museum and magazines, restaurants, aqua/fitness and golf parks, pension funds and foundations, and a bank.
The Complainant owns a number of trademarks including the terms “migros” and “migrosbank”. Inter alia, Swiss Trademark Registration No. 2P-415060 MIGROS (word mark), registered on February 13, 1995 and also, Swiss Trademark Registration No. 2P-414500 MIGROSBANK (word mark), registered on January 12, 1995. The Complainant also owns a number of domain names used to access its products and services, including, among others, <migros.com>, <migros.ch>, <migrosbank.com> and <migrosbank.ch>.
Particularly relevant is Migros Bank, a wholly owned subsidiary of the Complainant. Founded in 1958, Migros Bank has 67 locations in Switzerland. It operates an online website, “www.migrosbank.com”. It is also accessible on social media sites, such as Facebook, Twitter, Google +, Youtube, Xing and LinkedIn.
The disputed domain name was registered on February 15, 2017. The disputed domain name currently resolves to a parking page provided by the Registrar. The disputed domain name previously resolved to a website offering banking services.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical to or confusingly similar to the trademarks in which the Complainant has rights; that the Respondent has no rights to or legitimate interests in the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith. The Complainant seeks transfer of the disputed domain name to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name <migrosbonline.com> is in part identical to, and otherwise confusingly similar to Complainant’s trademarks. In particular, the disputed domain name incorporates one of the Complainant’s trademarks entirely. The inclusion of “migros” in the disputed domain name is identical to the Complainant’s MIGROS trademark and brand. The addition of the elements “b” and “online” in the disputed domain name, while not identical to Complainant’s trademark, do not negate their confusing similarity to that trademark. Nor does the addition of the generic Top-Level Domain (“gTLD”) suffix “.com” to the disputed domain name deny that similarity. As the panel recently held in International Business Machines Corporation v. Sledge, Inc. / Frank Sledge, WIPO Case No. D2014-0581: “...[I]t is generally accepted that the addition of the top-level suffix in the domain name (e.g., “.com”) is to be disregarded under the confusing similarity test”.
B. Rights or Legitimate Interests
The Respondent has no rights to, nor any legitimate interests in, the disputed domain name. The Respondent is not known by, nor engages in trade or commerce under the name “Migros”.
There is no evidence adduced that the Respondent has used, or intends to use, the disputed domain name in connection with a bona fide offering of goods or services. Nor is there any evidence demonstrating that the Respondent has any rights or legitimate interests in adopting the names “Migros” and / or “Migros bank”. The Respondent is not known by the disputed domain name. Nor is there any evidence that the Respondent has made, or intends to make, any legitimate, noncommercial or fair use of the disputed domain name. The Respondent is not authorized, expressly, impliedly, or ostensibly, to act for the Complainant in using the names “Migros” and / or “Migros Bank”. Nor has the Complainant ratified in any way the acts of the Respondent. On the contrary, it is reasonable to infer that the Respondent intends to deceive Internet users into believing that the Respondent is acting for or on behalf of the Complainant, or indeed, that the Respondent is the Complainant. It is particularly evident that the Respondent intends either to induce Internet users into visiting Respondent’s banking website under the misapprehension that the Respondent is authorized to act for the Complainant, or that the Respondent intends to induce the Complainant or a third party into buying the disputed domain name, or that the Respondent intends a combination of these three outcomes. Each of these intentions, expressed as interests, are illegitimate. None demonstrate that the Respondent has any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Respondent has registered and used the disputed domain name in bad faith. It is evident that the Complainant’s trademark MIGROS is well known, and that the Respondent was so aware in registering the disputed domain name.
The Respondent’s bad faith registration and use of the disputed domain name is reflected in the Respondent’s intention to mislead Internet users into believing that the Respondent is the Complainant, or that the Respondent is acting for the Complainant. The Respondent’s bad faith is particularly evident in creating a website with the same look and feel as the Complainant’s website devoted to online banking, “www.migrosbank.com”. In this regard, the Panel finds, at the very least, that the Respondent intends to mislead Internet users into accessing its website in the false belief that they were accessing Complainant’s website, and that it did so by registering and using the disputed domain name, which is confusingly similar to Complainant’s trademark, and including Complainant’s trademark MIGROS in the website to which the disputed domain name resolved. As the panel stated in Credit Industriel et Commercial S.A. v. Perfect Privacy, LLC / Zakaria Benouda, WIPO Case No. D2017-0066: “The Respondent did not make a fair or noncommercial use of the disputed domain name. On the opposite, the Respondent used a privacy shield service to register the domain name and then used it to resolve to an obviously infringing website copying the official Complainant’s website and reproducing the Complainant’s trademarks.”
The fact that the Respondent’s website was not active at the time of the filing of the Complaint does not negate the Respondent’s bad faith registration or use of the disputed domain name. Rather, it is reasonable to determine that, in creating a website with the same look and feel as that of the Complainant, the Respondent intends to secure a financial benefit from bad faith in registering and using the disputed domain name.
In conclusion, the Panel finds that by, using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location, in the meaning of paragraph 4(b)(iv) of the Policy.
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 <migrosbonline.com> be transferred to the Complainant.
Date: May 11, 2017