WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bayerische Motoren Werke AG v. Registration Private, DomainsByProxy.com, LLC / Patryk Matysiak
Case No. D2018-2123
1. The Parties
The Complainant is Bayerische Motoren Werke AG of Munich, Germany, represented by Kelly IP, LLP, United States of America (“United States”).
The Respondent is Registration Private, DomainsByProxy.com, LLC of Scottsdale, Arizona, United States / Patryk Matysiak of Warszaw, Poland.
2. The Domain Name and Registrar
The disputed domain name <bmwvin.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 September 17, 2018. On September 18, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 25, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 26, 2018.
The Center verified that the Complaint, together with the amended 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 October 2, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 22, 2018. The Response was filed with the Center on October 20, 2018. On October 26, 2018, the Complainant emailed to the Center a supplemental filing. The Center received an email communication from the Respondent on October 31, 2018.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on November 9, 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 is a German corporation. It is one of the most successful manufacturers of automobiles and motorcycles in the world and is the owner of the trademark and trade name BMW, in use since 1917, and the trademark MINI. Under such marks, the Complainant has manufactured, marketed and sold many millions of vehicles, including over two million automobiles in 2017, along with related parts and numerous related services such as maintenance and repair. The Complainant has more than 129,000 employees worldwide and manufactures its products and components at 30 sites in 14 countries on four continents. The Complainant uses a network of around 3,400 authorized dealers to market BMW vehicles in locations throughout the world.
The Complainant is the owner of numerous registered trademarks for the BMW mark including, for example, United States registered trademark no. 611710 for the word mark BMW registered on September 6, 1955 and covering automobiles and motorcycles in international class 12.
The Complainant maintains databases of proprietary data regarding its BMW automobiles tracked by the car’s “VIN” (vehicle identification number), a unique serial number used by the automotive industry. The Complainant’s VIN database is protected under copyright and European database law. The Complainant provides access to its databases to authorized users only, including independent car service businesses. The Complainant does not give permission for such data to be reproduced on third party websites.
The disputed domain name was created on April 21, 2012. The Respondent uses the disputed domain name for a commercial website which, according to a screenshot provided by the Complainant, uses the Complainant’s copyright protected photograph of a BMW vehicle under the legend “BMW VIN DECODER / CHECK YOUR BMW’S VIN IN SECONDS”. The said website contains advertisements for third party products including vehicles from manufacturers other than the Complainant and certain third party accessories. Some of the advertisements are presented to the reader in a box at the top of the relevant page and others are presented within the text of the website itself. The said website also generates reports featuring the Complainant’s BMW mark.
The Panel notes that since the Complainant took its screenshots, the Respondent has changed the disputed domain name so that it now forwards to a website at “www.bvzine.com” which features a pop-up box stating “Our VIN check has a new home! Find it at: decoder.bvzine.com”.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark in which it has rights; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
The Complainant notes that the disputed domain name is confusingly similar to the Complainant’s BMW mark because it contains such mark in its entirety and is merely combined with the generic or descriptive term “VIN”.
The Complainant contends that the Respondent’s registration and use of the disputed domain name for a commercial website featuring advertisements including pay-per-click ads for directly competing automotive websites does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Complainant submits that the Respondent’s passing off activities, namely the unauthorized use of the Complainant’s famous and registered BMW mark in the name “BMW VIN Decoder” on its website and on its reports, are further evidence of a lack of any legitimate interest in the disputed domain name. The Complainant asserts that the Respondent is trying to pass off its website and reports as the Complainant’s or affiliated with or endorsed by the Complainant.
The Complainant submits that the Respondent is not and has not been commonly known by the disputed domain name, adding that there is no evidence in the record to demonstrate otherwise. The Complainant notes that the Respondent is not a licensee of the Complainant or otherwise authorized to use the Complainant’s marks. The Complainant asserts that given the fame of the Complainant’s mark, the Respondent could not be known by the disputed domain name.
The Complainant contends that the Respondent’s registration and use of the disputed domain name constitute bad faith under paragraph 4(b)(iv) of the Policy because the Respondent uses the disputed domain name to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, and/or endorsement of the disputed domain name, the Respondent’s website, and the products/services advertised and/or offered therein. The Complainant contends that the Respondent’s registration and use of the disputed domain name constitute bad faith under paragraph 4(b)(iii) of the Policy because the Respondent is unfairly disrupting the Complainant’s business by using the disputed domain name for a website advertising directly competitive automotive websites, to divert traffic from the Complainant’s websites, and to take advantage of the Complainant’s goodwill in its BMW mark. The Complainant asserts that even if the Respondent itself is not a direct competitor of the Complainant, the fact that its activities are clearly in opposition to those of the Complainant is sufficient to define the Respondent as a competitor under the Policy.
The Complainant contends that the Respondent’s passing off activities constitute further evidence of bad faith. The Complainant adds that there is overwhelming evidence that the Respondent registered the disputed domain name in bad faith with knowledge of the Complainant’s rights in its BMW mark, given the fame of such mark and the explicit references to it on the Respondent’s website.
The Respondent requests that the Complaint be denied.
The Respondent submits that the use of the BMW mark in the disputed domain name and in the phrase “BMW VIN Decoder” is purely descriptive, noting that the associated website offers the possibility to decode the VINs of BMW vehicles. The Respondent argues that the BMW mark must be used to identify the vehicles for which the service caters and to exclude vehicles made by competing companies. The Respondent asserts that users would not understand the phrase to imply that the website is BMW’s VIN decoder or is otherwise endorsed by BMW.
The Respondent states that the website associated with the disputed domain name has operated as a VIN decoder since 2012 and provides a valuable service to BMW owners, potential owners and professionals. The Respondent notes that the information presented on the website is made freely available to the public through the Complainant’s own websites and that the Respondent’s website was created to provide customers with this public information in a more easily digested way.
The Respondent submits that online properties owned by the Complainant share a common brand identity including colors, a logo and particular typeface, noting that such identity is shared with television and print marketing. The Respondent states that his website shows none of these distinctive design elements such that no user familiar with the Complainant or its branding would believe that such website was associated with the Complainant. The Respondent contends that the highlighted image used on his website does not include the BMW roundel or any identifiable logotype or colors, adding that this disassociates the website from the Complainant and alerts the user to the fact that it is not affiliated with the Complainant. The Respondent states that the Complainant’s marketing department in Poland made it clear that BMW promotional images with the BMW logos removed could be used commercially to promote BMW original products.
The Respondent argues that the companies linked to on its website under “Available upgrades” are not the Complainant’s direct competitors as analogues of many of the products are not available from the Complainant. The Respondent adds that said companies offer a range of BMW OEM equipment purchased through the standard dealer channels.
The Respondent denies that the disputed domain name was registered in bad faith and states that this is evidenced by the fact that the website used no advertising links until some time after launch and displayed no images of the Complainant’s vehicles until 2016. The Respondent asserts that advertising was added to continue funding the running of the site. The Respondent states that it is not responsible for the content of advertisements issued by the Google network, adding that users flagged by Google as being interested in BMW vehicles may be more likely to see BMW-themed advertisements on the Respondent’s and other websites while those who frequent sites dedicated to the Complainant’s competitors may be issued different advertisements. The Respondent argues that the presence of advertisements for the Complainant’s direct competitors does not suggest that the Complainant endorses those competitors but proves to users that the Respondent’s website is unaffiliated with the Complainant.
The Respondent offers to adjust the use of its site by abstaining from the use of promotional photography and clearly communicating that it is not affiliated or endorsed by the Complainant.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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. Preliminary Issue: Complainant’s supplemental filing
Paragraph 12 of the Rules provides that it is for the panel to request, in its sole discretion, any further statements or documents from the parties it may deem necessary to decide the case. Paragraph 10 of the Rules provides, inter alia, that the panel has authority to determine the admissibility, materiality and weight of the evidence. Supplemental filings are generally discouraged, unless specifically requested by the panel.
The Complainant filed a supplemental filing on October 26, 2018 seeking to respond to matters raised in the Response. By email of October 31, 2018, the Respondent sought to oppose the Complainant’s filing being accepted by the Panel on the grounds that its arguments could have been anticipated by the Complainant and that the Respondent should not be expected to have anticipated the matters raised in the Complainant’s said supplemental filing.
In this particular matter, having considered the terms of the Complaint, the amended Complaint, the Response and the Parties’ related evidence, the Panel is of the opinion that it does not require additional information from either of the Parties to allow it to reach a decision on the merits. Accordingly, the Complainant’s supplemental filing will not be considered.
B. Identical or Confusingly Similar
Under this element of the Policy, the Complainant must demonstrate that it has rights in a trademark and that the disputed domain name is identical or confusingly similar to such trademark. The Complainant has demonstrated to the Panel’s satisfaction that it has rights in the BMW trademark by virtue of its registered trademarks, including that noted in the factual background section above, copies of which have been produced in evidence. The BMW mark is contained in its entirety as the first and most prominent element of the second level of the disputed domain name, coupled with the generic or descriptive word “VIN”, which in the Panel’s opinion does nothing to dissociate the Complainant’s trademark from the disputed domain name.
It is well accepted in cases under the Policy that the addition of one or more generic or descriptive terms to a trademark is insufficient to avoid a finding of confusing similarity in that it cannot remove the overall impression made on the public by the trademark which is the dominant part of the domain name (see, for example, Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409 and the discussion relative to the domain names <bmdecoder.com> and <bmwdecoder.com> in Bayerische Motoren Werke AG (“BMW”) v. Registration Private, Domains By Proxy, LLC / Armands Piebalgs, WIPO Case No. D2017-0156). This is sufficient for the Panel to find confusing similarity between the disputed domain name and the Complainant’s trademark. The applicable top-level suffix in a domain name, in the present case “.com”, is typically disregarded in the exercise of the comparison for the purposes of this element of the Policy (see section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
Under the section of the Response related to the first element of the Policy, the Respondent restricts its case to its alleged descriptive use of the Complainant’s mark. The argument does not alter the Panel’s conclusions regarding the nature and outcome of the comparison exercise above. Such submissions are more appropriate to the question of the Respondent’s alleged rights and legitimate interests in the disputed domain name and, accordingly, the Panel will consider them in the discussion regarding the second element of the Policy noted below.
In all of these circumstances, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy have been satisfied.
C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain name:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in a domain name. In the present case, the Panel is of the opinion that the Complainant’s submissions are sufficient to demonstrate such a prima facie case. The Panel notes in particular the Complainant’s contentions that the disputed domain name is used for a commercial website featuring pay-per-click and other advertisements for competing products and services and that the Complainant submits that this does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. In addition to the Complainant’s submissions regarding the Respondent’s alleged passing off activities, the Panel notes the Complainant’s contention that there is no evidence on the record that the Respondent is commonly known by the disputed domain name, nor could there be any possibility of the same given the fame of the Complainant’s mark, together with the Complainant’s submission that the Respondent is not a licensee of the Complainant or otherwise authorized to use the Complainant’s marks.
Given that the Complainant has established a prima facie case that the Respondent has no rights and legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to bring forward evidence of such rights and legitimate interests. The essence of the Respondent’s case is that it is making a descriptive or nominative fair use of the Complainant’s trademark, that the use of alternate logos and colours serve to distinguish its website from the Complainant’s website family, that the Complainant’s Poland office has previously permitted the use of the Complainant’s copyright images and that the offering for sale of third party products is permissible because the listed suppliers produce items for which there is no corresponding product in the Complainant’s inventory and/or that they offer the Complainant’s OEM products for sale.
Dealing first with the question of nominative fair use, the Panel notes that this question is typically addressed by panels under the Policy with reference to criteria originally established in the case of Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, which involved consideration of the trademark OKI DATA coupled with the word “parts” in the domain name <okidataparts.com>. The respondent in that case was an authorized reseller of OKIDATA products and the principal issue raised was whether it was entitled to tell consumers by way of the domain name concerned that it sold and repaired those products. The first criterion considered by the panel in that case was whether the respondent was actually offering the goods or services at issue. Applying this to the present matter, the Panel notes that the Respondent might have been able to fulfil this criterion in that it says that those suppliers to whom it links are offering OEM products of the Complainant. The Respondent does not however point to which products are official in the evidence and, furthermore, it faces a greater problem when the question of the Complainant’s VIN data is brought into consideration. This is the focus of the disputed domain name and corresponding website, yet such data is not a good or service made available by the Complainant for resale to the public. This issue is, however, best dealt with under the second criterion arising from Oki Data, supra, which is that the respondent must use the site to sell only the trademarked goods or services.
The Respondent candidly accepts that its website links to third party products not provided by the Complainant, even though, taking the Respondent’s case at its highest, there may be some OEM products of the Complainant offered alongside. It matters not in the mind of the Panel that corresponding products might not be offered in the Complainant’s inventory. The fact is that it is the attractive force of the Complainant’s mark in the disputed domain name which is being directly employed by the Respondent to encourage consumers to visit a site which is neither affiliated to nor authorized by the Complainant and which offers third party products which the Complainant neither approves, nor endorses, nor offers for resale. In these circumstances, the Panel considers that the Respondent cannot fulfil the second criteria examined by the panel in Oki Data, supra.
The Panel is fortified in this view by the fact that the Respondent does not deny that the VIN information which it displays is not an authorized product of the Complainant at all. The Complainant does not make its VIN data available as a product for parties such as the Respondent to reproduce or place beside advertisements. According to the Complainant, some of such data is restricted and others are available online on the Complainant’s official websites. The Panel notes that such data is strictly controlled, presumably in order to maintain the authenticity and integrity of the Complainant’s vehicle data for the benefit and protection of its dealers and authorized maintenance providers and ultimately for its consumers. The Respondent asserts that the information provided on its website is publicly available from the Complainant’s online properties and that it is merely repackaging it. However, the fact that some VIN information may be publicly accessible on the Complainant’s websites does not render all such information public, nor does it necessarily entitle the Respondent to exploit it for its own commercial gain. When any such information appears on the Complainant’s websites, its source is authoritative, unambiguous and fully subject to the Complainant’s control. It is used by the Complainant to provide certain discrete services to its customers, such as identifying replacement parts by way of the VIN number. In the Panel’s opinion, the reproduction of all or some of such data would not, of itself, confer any rights or legitimate interests upon the Respondent.
The third criterion is that the site must accurately and prominently disclose the registrant’s relationship with the trademark holder. The Respondent does not directly address this issue in its submissions and, in any event, the Panel has not identified any material in the evidence on the record which would accurately and prominently indicate that the Respondent’s website is unofficial and unaffiliated or endorsed by the Complainant, contrary to what the disputed domain name might suggest. According to the Respondent’s screenshots, there is what appears to be a link marked “Disclaimer” on early iterations of the Respondent’s website although this is at the foot of the page and could certainly not be regarded as prominent, nor does it appear on later screenshots and the Panel does not know to what this might have linked. The Panel is unpersuaded by the Respondent’s submission that the fact that its site has a different look and feel to that of the Complainant’s website family is of any significance. This submission is insufficient by itself to fulfil the relative criterion in that, at best, it might provide a suggestion of non-endorsement rather than an accurate or prominent disclosure of the lack of any relationship and, even then, it would only do so to a subset of consumers who are particularly familiar with the Complainant’s website style and any exclusivity which might appear to surround this.
The final criterion is that the Respondent must not try to “corner the market” in domain names that reflect the trademark. There is no evidence on the present record which indicates that the Respondent has done this. Nevertheless, taking all the Oki Data, supra, criteria together, it may be seen that the Respondent has failed to establish all of the criteria and thus to demonstrate that its use of the disputed domain name confers rights and legitimate interests upon it in connection with nominative fair use as the topic is typically considered in cases under the Policy.
For completeness, the Panel will review the Respondent’s remaining argument on rights and legitimate interests which is that its use of the Complainant’s copyright image is or has been permitted by the Complainant’s Poland office. This submission is unaccompanied by any supporting evidence and no weight can therefore be given to it. This leaves the Respondent in the position that the suggestion that its website is approved or endorsed by the Complainant, primarily indicated by the depiction of the Complainant’s famous trademark as the first and dominant portion of the disputed domain name, is further enhanced by the presence of a copy of an official photograph of the Complainant’s product, for which there is no evidence that authorization was given by the Complainant. This matter therefore fortifies the Panel in its view that the Respondent cannot claim rights and legitimate interests in the disputed domain name because it has been unable to demonstrate that it has any entitlement to depict itself or its website in this fashion. In general terms, panels under the Policy have held that where, as in the present case, a domain name consists of a trademark plus an additional term, such composition cannot confer rights or legitimate interests upon a respondent if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner.
The Panel considers that the Respondent’s case is insufficient to rebut the prima facie case demonstrated by the Complainant and therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name. The requirements of paragraph 4(a)(ii) of the Policy have been satisfied.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) 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 essence of the Complainant’s case under this topic is that registration and use in bad faith is established in terms of paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. With regard to paragraph 4(b)(iii) of the Policy, the Panel accepts the submission that the Respondent is effectively a competitor of the Complainant in that its activities are in direct opposition to the Complainant. Whether or not the VIN data provided by the Respondent is accurate, which is not something that the Panel can determine, the Complainant has established that it has a clear commercial interest in providing and protecting such data under reference to its BMW trademark. Such interest is being deliberately circumvented by the Respondent in a manner which, in the Panel’s opinion, will inevitably disrupt the Complainant’s business. In setting itself up to provide such data under the Complainant’s BMW mark, the Respondent is de facto competing with the Complainant and is intentionally seeking to target the Complainant’s rights in such mark. The Panel finds that registration and use in bad faith is established on this ground.
While, given the Panel’s finding above, it is not strictly necessary to examine the Parties’ cases with regard to paragraph 4(b)(iv) of the Policy, the Panel will do so for completeness. The Complainant’s case on this topic is that by publication of advertisements and linking to third party suppliers/products, the Respondent is intentionally attempting 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 the Respondent’s website. The Respondent seeks to counter this by submitting that the disputed domain name was not originally used in connection with such advertisements and that it is not responsible for the content of such advertisements.
With regard to the first point made by the Respondent, the Respondent has merely produced two screenshots which it says are from 2012 and 2014 respectively. These do not show any advertising but that does not by itself establish to the Panel’s satisfaction that the Respondent did not have intent for commercial gain when it registered the disputed domain name. The Panel accepts the thrust of the Complainant’s argument which is in effect that the actions of the Respondent must be taken as a whole in the process of evaluating its intent. When this is done, the Panel is satisfied on the balance of probabilities that the Respondent at least intended some form of commercial advantage by virtue of its registration and use of the disputed domain name even if all that was taking place in early versions of its site was the unauthorized publication of the Complainant’s VIN data.
To quote the panel in the case of Bayerische Motoren Werke AG (“BMW”) v. Registration Private, Domains By Proxy, LLC / Armands Piebalgs, WIPO Case No. D2017-0156, in which the facts and circumstances were substantively similar: “It is quite clear that by use of the Complainant’s BMW trademark or an abbreviation thereof, combined with the word ‘decoder’, [the Respondents] were seeking to attract customers who were looking for a source of technical information about BMW vehicles. It does not matter whether or not the information then provided was accurate or not, as what the Respondents are doing is using the Complainant’s trademark (or a contraction thereof) as part of the Disputed Domain Names to suggest they are likely to be an authorised source of such information. As such their behavior clearly amounts to that specified in paragraph 4(b)(iv) of the Policy as being evidence of registration and use in bad faith, namely ‘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’.”
In terms of the Respondent’s alleged lack of control over the advertisements on its website once they did appear, the Panel notes that it has long been recognized in cases under the Policy that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name and that neither the fact that such links are generated by a third party, nor that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith (see section 3.5 of the WIPO Overview 3.0). In these circumstances, registration and use in bad faith is also established in connection with paragraph 4(b)(iv) of the Policy.
In all of the above circumstances, the Panel finds that the disputed domain name was registered and has been used in bad faith and accordingly that the requirements of paragraph 4(a)(iii) of the Policy have been satisfied.
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 <bmwvin.com> be transferred to the Complainant.
Andrew D. S. Lothian
Date: November 23, 2018