WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Audi AG v. Pat Hafford
Case No. D2017-1620
1. The Parties
The Complainant is Audi AG of Ingolstadt, Germany, represented by HK2 Rechtsanwälte, Germany.
The Respondent is Pat Hafford of Holliston, Massachusetts, United States of America ("United States").
2. The Domain Name and Registrar
The disputed domain name <audiblog.com> is registered with Moniker Online Services, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 18, 2017. On August 18, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 21, 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 August 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 17, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 18, 2017.
The Center appointed Jane Lambert as the sole panelist in this matter on September 29, 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
Having delivered nearly 1.9 million cars in 2016, the Complainant is one of the biggest motor manufacturers in the world. The company's product range is set out in a document headed "Audi at a Glance" which is attached to the Complaint as Annex 4. Each and every one of those cars is supplied under the mark AUDI which forms part of its corporate name. The Complainant advertises and promotes its cars through its websites, television advertising, sports sponsorships and all other kinds of advertising.
The Complainant has registered the word AUDI as a trademark in all its markets including the United States where the mark has been registered with the Unites States Patent and Trademark Office for "G & S: Automobiles, Including Motor Cars for Personal Use and Trucks, and Structural Parts Thereof, Including Automobile Heaters and Ventilators, Locks and Closures for Automobile Coolers, and Automobile Safety Locks" in class 12 in December 1960 under registration number 708352 on the basis of a German mark dating from October 26, 1925.
Very little is known about the Respondent except the name and address revealed on a "whois" search. When the disputed domain name is typed into a browser it resolves to a webpage with sponsored links and searches. A screen dump of that page has been reproduced in the Complaint. The disputed domain name was registered in 2004.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain name on the grounds that:
- The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith.
As to the first ground, the Complainant states that the disputed domain name incorporates the AUDI in its entirety with which it is combined with the purely descriptive word "blog". The portmanteau word is itself combined with the suffix ".com" which is to be disregarded.
As to the second, the Complainant submits that it is required only to make out a prima facie case in order to shift the evidential burden to the Respondent. The Complainant relies on the screen dump mentioned above as evidence that the Respondent has no intention of using the disputed domain name in connection with a bona fide offering of goods and services. The Complainant has clicked some of the sponsored links and searches and finds that they lead either to its competitors or to sites that have nothing to do with the Complainant or its products. The Complainant has found no evidence that the Respondent is known by the names contained in the disputed domain name or that the disputed domain name has been used for a noncommercial or otherwise fair use.
For the third ground, the Complainant points to the screen dump and contends that it evidences an attempt by the Respondent to attract Internet users to his site for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of his web site through the use of the disputed domain. In the Complainant's submission, that and constitutes evidence of registration and use of the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Respondent's registration agreement contained the following provision which is derived from paragraph 4(a) of the Policy:
"Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present."
A. Identical or Confusingly Similar
The Panel finds the first element to be present.
The Complainant's trademark AUDI, which is registered with the United States Patent and Trademark Office under registration number 708352, is incorporated in the second level part of the domain name together with the word "blog". Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark.
B. Rights or Legitimate Interests
The Panel finds the second element to be present.
The Panel agrees with the Complainant that it only needs to make out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy lists a number of circumstances which if proved demonstrate that the Respondent has rights or legitimate interests in the disputed domain name. The Complainant has searched for evidence as to whether any of those circumstances applies and has found none.
The first circumstance cannot apply for there is evidence that the site has been used in a way that indicates bad faith. Neither can the second because there is no evidence that the Respondent is commonly known by the disputed domain name. Such use of the mark that has come to light is anything but legitimate, noncommercial or fair.
If there were an explanation for such use or evidence that the Respondent enjoyed some other rights or legitimate interests in the disputed domain name, he has had ample opportunity to disclose it. As he has chosen not to do so, the Panel must assume that he has no such rights or legitimate interests.
C. Registered and Used in Bad Faith
The Panel finds that the third element is present.
Paragraph 4(b) lists a number of circumstances which if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth of those circumstances is as follows: "by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location."
The Panel has already found that the disputed domain name is confusingly similar to the Complainant's United States registered trademark.
The Respondent has used the disputed domain name for a website the landing page of which consists of sponsored links and searches from which the Respondent will derive commercial gain whenever an Internet user clicks one of those links.
It may reasonably be inferred that the Respondent has used the disputed domain name to lead Internet Users to that site by leading them to believe that the disputed domain name will lead to the Complainant's site or a site about the Complainant's motor cars.
As the requirements of paragraph 4(b)(iv) of the Policy are satisfied it follows that the disputed domain name has been registered and 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 <audiblog.com> be transferred to the Complainant.
Date: October 10, 2017