WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AJ Produkter AB v. Milan Mauzer
Case No. D2020-0111
1. The Parties
The Complainant is AJ Produkter AB, Sweden, represented by Hansson Thyresson AB, Sweden.
The Respondent is Milan Mauzer, Germany.
2. The Domain Name and Registrar
The disputed domain name <ajprodukte.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2020. On January 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 17, 2020, 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 January 20, 2020, 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 amendment to the Complaint on January 22, 2020.
The Center verified that the Complaint together with the amendment to 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 January 23, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 13, 2020.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on February 14, 2020. 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 Swedish corporation set up in 1975. The Complainant has been doing business in about 19 countries in relation to lockers, canteen furniture, school furniture, office furniture and storage solutions.
The Complainant is the owner of the AJ international trademark number 749831 with designations under the Madrid Protocol in Estonia, Hungary, Iceland, Latvia, Lithuania, the Russian Federation and Slovenia with registration date of May 10, 2000.
The Complainant is the owner of the AJ AJ PRODUKTER.SE & Design Swedish trademark number 536895 with registration date of January 9, 2017.
The disputed domain name was registered on August 5, 2019. The domain name resolves to an error page due to inability to connect the web server.
5. Parties’ Contentions
The Complainant asserts that the trademark AJ and the combined device mark AJ have been extensively used since the introduction of the company in 1975. Further, the Complainant is the owner of the AJ AJ PRODUKTER.SE Swedish trademark since 2017. Thus, the disputed domain name <ajprodukte.com> is confusingly similar to the Complainant’s registered rights. The disputed domain name reproduces the Complainant’s trademark in its entirety except for the last letter “r”.
The “.com” generic Top-Level Domain (“gTLD”) should be disregarded for the purposes of the assessment of the first requirement of the Policy.
With regard to the second element, the Complainant contends that the Respondent lacks rights or legitimate interests in the AJPRODUKTE trademark. The Complainant has not given the Respondent any authorization to register its trademark as a domain name. The Complainant also thinks that the disputed domain name is falsely suggesting an affiliation with the trademark owner.
Further, there is no evidence that the Respondent has been commonly known by the disputed domain name. Nor is the Respondent making any legitimate non commercial or fair use of the disputed domain name.
With regard to the third element, the Complainant contends that the disputed domain name has been registered and is being used in bad faith. Indeed, the Respondent was well aware of the Complainant and its trademarks at the time of the registration of the disputed domain name since the Complainant has been well exposed under the trademarks, both through its own marketing channels but also by advertising in connection with different sport events. The disputed domain name is being used as a pretext for cybersquatting or disrupting the Complainant’s business.
The Complainant also asserts that the goal of registering the disputed domain name was to capitalize or otherwise take advantage of the Complainant´s trademarks rights for commercial gain.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that:
(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 was registered and is being used in bad faith.
There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration.
A. Identical or Confusingly Similar
To the satisfaction of the Panel the Complainant has shown registered trademark rights in the marks AJ and AJ AJPRODUKTER.SE. It is well accepted that the standing test for confusing similarity involves a comparison between the Complainant’s mark and the disputed domain name. The Panel also looks at the section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “…where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing”.
Accordingly, the disputed domain name <ajprodukte.com> is to be considered confusingly similar to the aforementioned trademarks for purposes of the UDRP.
It is well established that gTLDs, in this case “.com”, are typically irrelevant to the consideration of identity or confusing similarity between a trademark and a domain name.
To the satisfaction of the Panel the first requirement is met under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has produced evidence to show that there is no relationship between the Parties, that the Complainant has not licensed or otherwise permitted the Respondent to register its trademark as a domain name and that the Respondent has not been commonly known by the disputed domain name.
Accordingly, the Panel finds that the Complainant has made a prima facie showing that the Respondent does not have rights or legitimate interests in the disputed domain name.
The Panel, thus, look at the WIPO Overview 3.0, section 2.1: “[W]here a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name”. However, the Respondent did not reply to the Complainant’s contentions. Thus, the Respondent did not come forward with such relevant allegation or evidence before the Panel.
The Complainant has therefore demonstrated that the Respondent lacks rights or legitimate interests in the disputed domain name to the satisfaction of the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Panel has had the opportunity to check from a Google search the top results of the term “ajprodukte” are related to the Complainant and its services. The Panel also notes that according to the Complainant its trademarks have been in use for many years in many jurisdictions.
Under these circumstances, the Panel finds that the registration of the disputed domain name gives rise to an attempt to target the Complainant and its trademark. Accordingly, and also considering the composition of the disputed domain name, it seems more likely than not that the Respondent knew of the Complainant and its business when it registered the disputed domain name.
The Panel looks at how the disputed domain name is being used. Currently the disputed domain name does not resolve to an active website. The Panel has tried a number of times with no result at all. That is to say that the disputed domain name is inactive. In these circumstances registration and use in bad faith may also be found according to the principles established at Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The Panel also notes that for a finding of “passive holding” it is necessary to have in mind the totally of the circumstances of the case. Here, the facts alleged in the Complaint, the lack of the Respondent’s rights or legitimate interests, and the lack of response to the Complaint support a finding of bad faith use and registration.
Upon the above mentioned, the Complainant has established the third element in paragraph 4(a)(iii) 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 <ajprodukte.com> be transferred to the Complainant.
Date: February 24, 2020