WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SAP SE v. Domains by Proxy LLC / Carolina Rodrigues, Fundacion Comercio Electronico
Case No. D2018-1090
1. The Parties
The Complainant is SAP SE of Walldorf, Germany, represented by K&G Law LLC, United States of America (“USA”).
The Respondent is Domains by Proxy LLC of Scottsdale, Arizona, United States of America /Carolina Rodrigues, Fundacion Comercio Electronico of San Francisco, Panama City, Panama.
2. The Domain Name and Registrar
The disputed domain name <successfactorss.com> (the “Domain Name”) 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 15, 2018, naming the Respondent as Domains by Proxy LLC. The Center sent its request for registrar verification to the Registrar on May 16, 2018. The Registrar replied on May 17, 2018, confirming that it had received a copy of the Complaint, that the Domain Name is registered with it, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies, that the Domain Name would remain locked during this proceeding subject to expiry, and that the language of the registration agreement is English. However, the Registrar stated that Domains by Proxy LLC is not the registrant of the Domain Name, which it identified as Carolina Rodrigues, and provided the full contact details held on its WhoIs database in respect of the Domain Name. The Registrar also stated that the Domain Name had been registered to this registrant since at least May 17, 2018 and would expire on May 8, 2019. The WhoIs data provided by the Registrar indicated a creation date of May 8, 2018.
By email of May 22, 2018, the Center invited the Complainant to amend the Complaint based on the registrant information received from the Registrar. The Complainant submitted an amended Complaint on May 23, 2018, identifying Carolina Rodrigues as the Respondent.
The Center verified that the Complaint and amended Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 25, 2018. In accordance with paragraph 5 of the Rules, the due date for Response was June 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 18, 2018.
The Center appointed Jonathan Turner as the sole panelist in this matter on July 5, 2018. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the amended Complaint complied with applicable formal requirements, was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant is a leading supplier of enterprise software applications, analytics, mobile solutions and related services. It employs over 87,000 people around the world and serves over 365,000 customers in over 180 countries.
The Complainant has a wholly-owned subsidiary, SuccessFactors, Inc., which is a global provider of cloud-based human resource software and human capital management systems. SuccessFactors. Inc. has more than 6,400 customers and affects over 100 million people in more than 60 industries in over 200 countries or territories.
SuccessFactors, Inc., has registered the mark SUCCESSFACTORS on the principal register of the United States Patent and Trademark Office (“USPTO”) under No. 3501837 with registration date September 16, 2008 pursuant to an application filed on June 29, 2005, claiming first use on August 31, 2001.
The Complainant has registered the mark SAP SUCCESSFACTORS on the principal register of the USPTO under No. 5435390 with registration date April 3, 2018 pursuant to an application filed on August 25, 2016, claiming a priority date of August 17, 2016.
The Domain Name appears to have been registered on May 8, 2018 and has been directed to a web page displaying sponsored links.
5. Parties’ Contentions
The Complainant contends that it has rights in the marks SUCCESSFACTORS and SAP SUCCESSFACTORS and that the Domain Name is confusingly similar to these marks. The Complainant notes that apart from the generic Top-Level Domain (“gTLD”), the Domain Name consists of the mark SUCCESSFACTORS with an extra “s” at the end, making it a minor misspelling of the mark.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant states that it has not authorized or licensed the Respondent to use the name SUCCESSFACTORS and that the Respondent has no connection with it.
The Complainant alleges that the Respondent registered and is using the Domain Name in bad faith. According to the Complainant, the incorporation of its well-known mark into the Domain Name with no plausible explanation indicates bad faith.
The Complainant seeks a decision that the Domain Name be transferred to it.
As stated above, the Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is convenient to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the mark SUCCESSFACTORS. Although this mark is used by and registered in the name of the Complainant’s wholly-owned subsidiary, SuccessFactors, Inc., the Panel considers that the Complainant’s connection as parent and operator of closely related businesses is sufficient to confer rights in this mark on the Complainant for the purposes of the UDRP.
The Panel further finds that the Domain Name is confusingly similar to this mark, from which it differs only in the addition of the letter “s” and the gTLD suffix. The Domain Name could readily be typed by mistake instead of a domain name identical to this mark apart from the gTLD suffix or misread as that domain name.
It is not necessary to consider the mark SAP SUCCESSFACTORS.
The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in the Domain Name. On the evidence, it appears that the Respondent has not made or carried out preparations to make a bona fide offering of goods or services, that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name, and that the Respondent is not commonly known by the Domain Name.
None of the circumstances mentioned in paragraph 4(c) of the UDRP as demonstrating rights or legitimate interests in a domain name is present. Nor is there any other basis on which the Respondent could claim any rights or legitimate interests in respect of the Domain Name. The second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
The Panel notes that the Domain Name consists of a missspelling of an established mark that had been used for a number of years on an extensive scale by a leading group of companies prior to the registration of the Domain Name apparently on May 8, 2018. No explanation has been given for the registration of the Domain Name and it is difficult to imagine a bona fide explanation for it. If the Respondent had intended to make some form of bona fide use of the descriptive words “success factors” it would not have missspelt them.
In these circumstances, the Panel infers that the Domain Name was registered in bad faith and has since been used in bad faith by holding it with a view to sale to the Complainant or a competitor of the Complainant or intentionally attracting Internet users to a web page for commercial gain by confusion with the Complainant’s mark.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. All three requirements of the UDRP are satisfied and it is appropriate to direct that the Domain Name be transferred to the Complainant.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <successfactorss.com> be transferred to the Complainant.
Date: July 16, 2018