WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SAP SE v. Anuoluwapo Akobi
Case No. D2018-0624
1. The Parties
The Complainant is SAP SE of Walldorf, Germany, represented by K&G Law LLC, United States of America (“US”).
The Respondent is Anuoluwapo Akobi of Lagos, Nigeria.
2. The Domain Name and Registrar
The disputed domain name <aribacompany.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2018. On March 21, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2018, 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 March 28, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 17, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 18, 2018.
The Center appointed George R. F. Souter as the sole panelist in this matter on May 1, 2018. 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 has been producing enterprise software applications, analytics, mobile solutions and related services since 1972. It currently employs over 87,000 people world-wide, representing over 130 nationalities, and serves over 365,000 customers in 180 countries. Ariba, Inc. is a wholly-owned subsidiary of the Complainant, and the Complainant operates an SAP Ariba network, on which more than 3.1 million businesses in more than 190 countries collaborate on transactions. The SAP Ariba software allows buyers to manage the purchasing process while controlling spending, finding new sources of savings and creating a sustainable supply chain. Approximately USD 1.6 trillion in goods and services are traded via SAP Ariba each year. The Complainant has provided evidence of a number of US registrations of its ARIBA trademark, including US registration No. 2403473, registered on November 14, 2000, with use in commerce dating from 1999, and US registration No. 2204416, registered on November 17, 1998, with use in commerce dating from 1997.
The disputed domain name was registered on March 2, 2018. The disputed domain name appears to have been used in connection with a fraudulent email scheme. The disputed domain name resolves to a parking page.
5. Parties’ Contentions
The Complainant alleges that the disputed domain name is confusingly similar to its ARIBA trademark, containing the ARIBA trademark in its entirety, with the mere addition of the descriptive or non-distinctive element “company”.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular that the Respondent has no connection with the Complainant, nor has it been authorised or licensed by the Complainant to use its ARIBA trademark.
The Complainant alleges that the disputed domain has been registered in bad faith, and is being used in bad faith in connection with a generally dormant registration, but that the Respondent has contacted members of the public using an email address tied to the disputed domain name without the knowledge or consent of the Complainant. In one example, the Respondent used the name of a bona fide employee of the Complainant in connection with an apparent employment opportunity.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(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.
A. Identical or Confusingly Similar
It is well established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) (e.g., “.com”, “.info”, “.net”, “.org”) may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name. The Panel agrees with this view and considers the gTLD “.com” to be irrelevant in the present case.
It is well established in prior decisions under the UDRP that the mere addition of a descriptive or non-distinctive element to a trademark in which the complainant has rights is insufficient to avoid a finding of confusing similarity. In the circumstances of the present case, the Panel recognizes that the Complainant has clear rights to its ARIBA trademark, and regards the additional element “company” in the disputed domain name to be a descriptive or non-distinctive element, and the Panel consequently finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
It is a well-established view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel regards the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case. In particular, the Panel adopts the view that use of a domain name for fraudulent purposes can never confer rights or legitimate interests on a respondent.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name, may lead, in appropriate circumstances, to a finding that a disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the only difference between the Complainant’s trademark and the disputed domain name is the addition of a descriptive or non-distinctive element, is sufficient to justify a finding that the disputed domain name has been registered with the trademark of the Complainant in mind.
In the circumstances of the present case, the use of the disputed domain name in connection with an email relating to a fictitious employment opportunity, including the false use of the name of a bona fide employee of the Complainant gives rise to a legitimate concern on behalf of the Complainant as to the use of the disputed domain name to its detriment. Clearly, the use of the disputed domain name in connection with a fraudulent email scheme can only lead to the conclusion that the disputed domain name is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the dual requirements of paragraph 4(a)(iii) 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 <aribacompany.com> be transferred to the Complainant.
George R. F. Souter
Date: May 15, 2018