WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
OLZ AG v. Daniel O’donovan
Case No. D2018-2760
1. The Parties
The Complainant is OLZ AG of Bern, Switzerland represented by Beutler Künzi Stutz AG, Switzerland.
The Respondent is Daniel O’donovan of Milton Keynes, Buckinghamshire, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).
2. The Domain Name and Registrar
The disputed domain name <olzgroup.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 November 30, 2018. On November 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 30, 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 December 5, 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 December 7, 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 December 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 30, 2018.
On December 12, 2018, the Complainant submitted an unsolicited supplemental filing.
The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2019.
The Center appointed Brigitte Joppich as the sole panelist in this matter on January 14, 2019. 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 Swiss asset management company (for both institutional investors and private clients) established in 2001 with subsidiaries in Liechtenstein, Singapore and Hong Kong, China. The name of the Complainant (OLZ) is an acronym of the family names of its three founding partners.
Based on Swiss registration number 644274 for OLZ with a priority of November 15, 2012, the Complainant also is the registered owner of inter alia international trademark number 1171085, designating China, the European Union, Japan, Liechtenstein, the Russian Federation and Singapore, all at least for services in class 36 (the “OLZ Marks”).
The disputed domain name was first registered on September 18, 2018. The website at the disputed domain name currently displays an offer of financial services and reflects various texts that are with minor variations also to be found on the Complainant’s website at “www.olz.ch”. It initially also contained the address of the Complainant’s Liechtenstein subsidiary.
5. Parties’ Contentions
With regard to the three elements specified in the Policy, paragraph 4(a), the Complainant contends that each of the three conditions is given in the present case.
(i) OLZ is a distinctive name created by the Complainant. The disputed domain name is supposed to be confusingly similar to the OLZ Marks as only the generic term “group” was added to the acronym OLZ.
(ii) The Respondent allegedly has no rights or legitimate interests in respect of the disputed domain name since the Respondent neither has any connection with the Complainant or its subsidiaries nor has been licensed or authorized by the Complainant. Furthermore, the initial version of the website at the disputed domain name displayed as contact details only the address of the Complainant’s Liechtenstein subsidiary, which was removed after the Complainant had sent a shutdown notice to the Registrar and never replaced by any other address. The Complainant claims that there is no “OLZ company” other than the Complainant at the address of its Liechtenstein subsidiary and no company called “OLZ Group” registered in the Commercial register of Liechtenstein. The use of a privacy shield and the copying of texts from the Complainant’s website is also supposed to be indicating the absence of rights or legitimate interests.
(iii) The Complainant alleges that the disputed domain name was registered and is being used in bad faith. When registering the disputed domain name, the Respondent must have been aware of the Complainant’s OLZ Marks because of the use of the address of the Complainant’s Liechtenstein subsidiary, the offering of financial services (identical to those offered by the Complainant) and the copying of text elements from the Complainant’s website. The Complainant claims to have been contacted by two unknown persons about a company called OLZ Group offering financial services and to have received an unsolicited email containing a link to the website at the disputed domain name on October 4, 2018, also using the address of the Complainant’s Liechtenstein subsidiary. The Respondent is thus supposed to have mislead the public in making believe that the owner/operator of the website at the disputed domain name is somehow related to the Complainant and to have intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of his website.
By way of its supplemental filing, the Complainant introduced a letter to the proceedings dated December 3, 2018 from a certain Mr. Robin Hunt, addressed to OLZ Group and received by the Complainant’s Liechtenstein subsidiary on December 7, 2018. In such letter, Mr. Hunt states that he was unable to send the e-transfer receipt of a payment he made to a certain Mr. James and that he therefore sends said receipt as an enclosure to his letter. The Respondent submits that the letter by Mr. Hunt proves that several persons were contacted by someone allegedly working for OLZ Group, who referred them to the website at the disputed domain name, thereby posing as an agent of the Complainant, defrauding members of the public and acting in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the disputed domain name is identical or confusingly similar to the Complainant’s trademark; 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. Supplemental Filing
The Complainant submitted an unsolicited supplemental filing on December 12, 2018.
The Rules and the Supplemental Rules do not expressly provide for unsolicited additional filings. Generally, panels will only accept supplemental filings in “exceptional” circumstances where such a filing clearly shows its relevance to the case and why it was unable to provide the information contained therein in the original complaint or response (See section 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In the present case, the Panel considers that the Complainant’s request to file a supplemental filing is justified since the relevant evidence introduced was not available at the time of filing the Complaint and the Respondent had ample opportunity to comment on it in its response. Therefore, the supplemental filing is accepted in accordance with paragraph 10(a) of the Rules.
B. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the OLZ Marks as it contains such trademarks in their entirety, merely adding the dictionary term “group”.
The Panel finds that the Complainant satisfied the requirements of the Policy, paragraph 4(a)(i).
C. Rights or Legitimate Interests
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the disputed domain name, it is the consensus view among UDRP panels that a complainant has to make only a prima facie case to fulfill the requirements of the Policy, paragraph 4(a)(ii). As a result, once a prima facie case is made, the burden of coming forward with evidence of the respondent’s rights or legitimate interests in the disputed domain name will then shift to the respondent.
The Complainant has substantiated that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that the burden of production has been shifted to the Respondent.
The Respondent did not deny these assertions in any way and therefore failed to come forward with any allegations or evidence demonstrating any rights or legitimate interests in the disputed domain name.
Based on the evidence before the Panel, the Panel cannot find any rights or legitimate interests of the Respondent either.
The Respondent is using the disputed domain name for a website offering services similar to those of the Complainant, displaying the Complainant’s trademarks and text elements from the Complainant’s website as well as, in the past, the address of the Complainant’s Liechtenstein subsidiary.
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain name under the Policy, paragraphs 4(a)(ii) and 4(c).
D. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent registered and used the disputed domain name with full knowledge of the Complainant and its rights in the OLZ Marks and thus in bad faith as the Respondent used the disputed domain name within a few weeks after its registration in connection with a website (a) featuring financial services very similar to those offered by the Complainant, (b) using the Complainant’s subsidiary’s address in Liechtenstein and (c) many of the text elements on the Complainant’s website with minor variations only. Moreover, the Complainant supplied evidence that the information on the website at the disputed domain name is misleading Internet users.
By fully incorporating the OLZ Marks into the disputed domain name and by using such domain name for a website advertising financial services, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant’s website to its own for commercial gain as set out under the Policy, paragraph 4(b)(iv).
Consequently, the Panel finds that the Respondent registered and used the disputed domain name in bad faith and that the Complainant satisfied the requirements of the Policy, paragraph 4(a)(iii).
For the foregoing reasons, in accordance with the Policy, paragraph 4(i), and the Rules, paragraph 15, the Panel orders that the disputed domain name <olzgroup.com> be transferred to the Complainant.
Date: January 24, 2019