WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
QlikTech International AB v. Saad Ansari
Case No. D2018-1048
1. The Parties
The Complainant is QlikTech International AB of Lund, Sweden, represented by Ports Group AB, Sweden.
The Respondent is Saad Ansari of Dammam, Saudi Arabia.
2. The Domain Name and Registrar
The disputed domain name <qlikcash.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 May 14, 2018. On May 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 14, 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 May 23, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 14, 2018. Later on the same day, the Center received two email communications from the Respondent. Moreover, on July 3, 2018 the Respondent sent two email communications to the Center.
The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on June 20, 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, QlinkTech International AB, was founded in 1993 and delivers intuitive platform solutions for self-service data visualization, guided analytics applications and embedded analytics, and claims that companies of all sizes, across all industries and geographies, use Qlink solutions to visualize and explore information, generate insight and make better decisions.
The Complainant holds a European Union word Trademark QLIK registration No. 001115948 filed on March 23, 1999 and registered on May 5, 2000 in Nice classes 9, 35 and 42 and an International word trademark QLIK registration No. 839118, granted on May 14, 2004, in addition to many other trademark registrations that include the word QLIK and several figurative Q trademark registrations in the same above-mentioned classes.
The Complainant claims to have an extended ecosystem that includes a global user community of more than 100,000 participants and marketplace for sharing applications, data and knowledge, plus a network of 1,700 experienced partners around the globe.
The Complainant's QLIK products and services are sold throughout the world and advertised in a variety of media, including the site "www.qlik.com" and have been recognized by the business and the software community for several industry awards.
The Respondent registered the disputed domain name <qlikcash.com> on February 14, 2017.
The site "www.qlikcash.com" is used by the Respondent to indicate that "Qlikcash has been designed with doing business in mind. Whether you have an existing business current account or you are looking for the perfect account for your own venture, Qlikcash revolutionises the way you manage finances and accounting." It also offers "A smart card for smart entrepreneurs."
5. Parties' Contentions
The Complainant contends that the disputed domain name <qlikcash.com> is confusingly similar to the Complainant's trademark QLIK, that the Respondent has no rights or legitimate Interests with respect to the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. The Complainant requests transfer of the disputed domain name to the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely 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 was registered and is being used in bad faith.
The Panel notes the two email communications, and submission, received on June 14 and July 3, 2018, by the Center from the Respondent after the Center notified the Respondent's default on June 14, 2018. The Panel notes that the Respondent's submissions have come in untimely. Be that as it may, these submissions do not alter the Panel's findings in this matter.
A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has rights in the trademark QLIK.
The standing test for confusing similarity involves a reasoned but relatively straightforward comparison between the trademark and the disputed domain name to determine whether the domain name is confusingly similar to the trademark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.
In this case the disputed domain name <qlikcash.com> contains the Complainant's trademark, QLIK, in its entirety. The addition of the non-distinctive word "cash" is not sufficient to avoid a finding of confusing similarity.
As set forth in section 1.7 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0) "in cases where a domain name incorporates the entirety of a trademark […] the domain name will normally be considered confusingly similar to that mark […]."
For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the Top-Level Domain ("TLD") as it is viewed as a standard registration requirement (section 1.11.1 of WIPO Overview 3.0).
The Panel finds that the disputed domain name <qlikcash.com> is confusingly similar to the trademark QLIK in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established, as it is put in section 2.1 of WIPO Overview 3.0, that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
The Complainant submits that the Respondent does not have any rights in the trademark QLIK or in the figurative Q which is registered by the Complainant in different forms. Moreover, the Complainant sustains that it has never granted the Respondent with the right to use or register the trademark QLIK or any of the figurative Q trademarks belonging to the Complainant or to register and use the QLIK trademark as a domain name.
Previous panels under the Policy have found that a lack of rights or legitimate interests exists where, as here, "Complainant asserts that it has not authorized Respondent to use the mark." Chicago Pneumatic Tool Company LLC v. Texas International Property Associates- NA NA, WIPO Case No. D2008-0144.
As sustained by the Complainant, there is no evidence in the present case that the Respondent has been commonly known by the disputed domain name, enabling it to establish rights or legitimate interest in <quikcash.com>.
Likewise and as further discussed under section C of this decision, it does not seem that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name, but rather it is using the Complainant's trademarks without consent.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not submitted convincing evidence of any rights or legitimate interests, and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
To succeed under the Policy, a complainant must show that the domain name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Complainant's trademark QLIK when it registered the disputed domain name <qlikcash.com> on February 14, 2017.
In fact, on November 22, 2017, Director and Senior Counsel, Intellectual Property of the Complainant sent a cease and desist letter to the Respondent requesting that they discontinue using the Complainant's marks and to transfer the disputed domain name to the Complainant.
In his reply of March 8, 2018, the Respondent, Mr. Saad Ansari, admitted that "I came across your company in 2014 when we were doing a BI implementation at a company I was working with in Saudi Arabia. We had a choice between Qlik and Tableau. We decided to go for the latter and since that day I have had no connection with your brand."
In the same communication, the Respondent added "What prompted our name change has nothing to do with your email […] We do not have a product in the market yet."
On March 8, 2018 the Respondent informed the Complainant "Yes, we are still planning to change our branding. However, this is dependent on raising funds. […] Until, we do so can´t change the branding."
On such grounds the Respondent failed to comply with Complainant's request to have the disputed domain name transferred to the Complainant, thereby giving rise to the present proceedings.
In the light of the Respondent's reply to the cease and desist letter, it is implausible that the Respondent was unaware of the Complainant's trademark QLIK when it registered the disputed domain name.
The fact that there is a clear absence of rights or legitimate interests coupled with no credible explanation for the Respondent's choice of the disputed domain name is also a significant factor to consider that the disputed domain name was registered in bad faith (as stated in section 3.2.1 of WIPO Overview 3.0).
The Panel finds, on balance, 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 widely used mark as to the source, sponsorship, affiliation, or endorsement. This amounts to bad faith under 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 <qlikcash.com> be transferred to the Complainant.
Miguel B. O'Farrell
Date: July 4, 2018