WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Crown in the Right of the State of Queensland C/- The Department of Transport and Main Roads v. Ke Auk
Case No. D2019-0405
1. The Parties
The Complainant is The Crown in the Right of the State of Queensland C/- The Department of Transport and Main Roads of Brisbane, Queensland, Australia, represented by Corrs Chambers Westgarth, Australia.
The Respondent is Ke Auk of Brisbane, Queensland, Australia.
2. The Domain Name and Registrar
The disputed domain name <translink.app> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 21, 2019. On February 21, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 21, 2019, 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 February 22, 2019, 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 February 26, 2019.
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 proceeding commenced on February 26, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 19, 2019.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 22, 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 division of the Department of Transport and Main Roads of the Australian State of Queensland, with responsibility state wide in Queensland for a wide variety of transport services, including
buses, trains, ferries and trams.
The Complainant is the owner of several registrations in Australia for the word and device mark TRANSLINK (the “Trade Mark”), including registration No. 626387 for the word Trade Mark, with a registration date of April 5, 1994; and registration No. 959029 for the device Trade Mark, with a registration date of June 25, 2003.
The Complainant is also the owner of several domain names comprising the Trade Mark, including <translink.com.au> and <mytranslink.com.au>. The Complainant operates a website at “www.translink.com.au” and an App entitled MyTransLink, both providing key journey planning services to the Complainant’s customers.
The Complainant has used the Trade Mark since 2004 in respect of its transport services.
The Respondent is located in Brisbane, Queensland, Australia.
C. The Disputed Domain Name
The disputed domain name was registered on May 9, 2018.
D. The Respondent’s Use of the Disputed Domain Name
The disputed domain name has been resolved to a website (the “Website”) which mimics the services provided by the Complainant on the Complainant’s website and via the Complainant’s App; reproduces the word and device Trade Mark; refers to the MyTransLink App; contains sponsored links relating to transport services; and also features a banner with the wording “If you are interested in buying this domain name, Contact Us” and a “Buy this domain” link.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name comprises the Trade Mark in its entirety and is, excluding the generic Top-Level Domain (“gTLD”) “.app”, identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical or confusingly similar to the Trade Mark. Accordingly, the first element under paragraph 4(a) of the Policy has been made out.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the Respondent has used the disputed domain name in order to pass off the Website as a website of the Complainant, or otherwise a website sponsored, authorised or approved by the Complainant; in order to gain pay-per-click revenue from the sponsored links featured on the bottom of the Website; and also to offer the disputed domain name for sale via the banner link at the bottom of the Website.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the Respondent’s use of the Website in the manner highlighted in Section B. above, the Panel finds that the disputed domain name has been registered and is being used in bad faith, under paragraphs 4(b)(i) and 4(b)(iv) of the Policy.
On the uncontested facts of this proceeding, including the fact the Respondent is apparently a resident of the State of Queensland, it is inconceivable that the Respondent was not well aware of the Complainant and of its rights in the Trade Mark at the time of registration of the dispute domain name.
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 <translink.app> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: March 29, 2019