WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AB MEDIA Gcv v. Reshad Bashir, AXC BV
Case No. D2021-1595
1. The Parties
The Complainant is AB MEDIA Gcv, Belgium, represented by Michiel Van Lerbeirghe, Belgium.
The Respondent is Reshad Bashir, AXC BV, Netherlands.
2. The Domain Name and Registrar
The disputed domain name <gentstudent.net> is registered with Realtime Register B.V. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2021. On May 21, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 22, 2021, 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 June 1, 2021, 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 June 5, 2021.
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 June 7, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 28, 2021.
The Center appointed Alfred Meijboom as the sole panelist in this matter on July 24, 2021. 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
Since 2015, the Complainant operates a social media platform on which it publishes uploaded videos and photos which, at least originally, related to Ghent university life. In 2017, the Complainant began operating a website via the domain name <gentstudent.com> (registered on April 8, 2017) selling apparel featuring “Gentstudent”. The Complainant is owner of Benelux word mark GENTSTUDENT with registration number 1392000, which was filed on March 13, 2019, and registered on November 21, 2019, for clothing, providing access to online multimedia contents, and to content, websites, and portals (the “Trademark”).
The Respondent registered the disputed domain name on January 19, 2019. The disputed domain name resolves to a competing platform, referring to the Complainant’s platform and offering online dating services.
5. Parties’ Contentions
The Complainant alleges that its founder created a social media account via Snapchat on which he shared videos and photos concerning events of the Ghent university and college life, which social media channel he named “Gentstudent”, referring to the Belgian student city Gent and the word “student”, which term “Gentstudent” as such does not exist in the Dutch language. This platform became rapidly popular, caught media attention and has currently over 214,000 followers. Since 2017, the Complainant’s founder started selling “Gentstudent” marked clothing online via the domain name <gentstudent.com>. According to the Complainant, since 2015, its founder and the Complainant were confronted with many fake accounts and counterfeiters who wanted to free ride on the success of the “Gentstudent” platform, for which reason the Complainant eventually applied for and registered the Trademark. The Complainant has been in email contact with the Respondent in or around July 2019 and has asked the Respondent to take the content of its website under the disputed domain name offline and to transfer the disputed domain name to the Complainant, which the Respondent refused to do.
According to the Complainant the disputed domain name is identical to the Trademark. The Complainant also argues that the Complainant has unregistered trademark rights related to the term “Gentstudent” because the Complainant had been continuously and intensively using the term “Gentstudent” as a trademark since 2015, as a result of which the term already was an identifying mark for the relevant public before the Trademark was registered.
The Complainant further alleges that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent’s use of the term “Gentstudent” is clearly intended to misleadingly divert and confuse consumers and to take advantage of the notoriety of the Trademark, to which the Respondent is literally referring. The Complainant therefore contends that the Respondent is impersonating the Complainant and pretending to be the founder of the Complainant, and accordingly cannot have any rights or legitimate interests to use the disputed domain name. According to the Complainant, the likelihood of confusion is amplified as a result of the dating services offered by the Respondent as the student-like content on the Complainant’s platform is often also sexually related, which the Complainant claims is one of the reasons for its success, and the Respondent is clearly trying to take advantage of the reputation and popularity of the Trademark to sell and promote its “dating” services. The Complaint further observes that the Respondent lives in Leeuwarden, a city in the northern part of the Netherlands, over 340 km away from the city of Ghent, which the Complainant claims confirms that the Respondent has nothing to do with the student city of Ghent, and that the Respondent has no legitimate interest to use the Trademark.
Furthermore, the Complainant asserts that the Respondent’s former company was described online as “controversial”, and is apparently known for “bribery” and “dodgy practices”, so that the website under the disputed domain name could thus also have potentially dangerous consequences, as it is unclear and uncertain what the Respondent intends to do with the personal and sensitive data which he collects by operating his website under the disputed domain name.
According to the Complainant, the disputed domain name consists of its well-known Trademark, which constitutes a presumption that the disputed domain name was registered and is being used in bad faith. On its website, the Respondent is impersonating the Complainant so that it is unclear for the public that the website of the Respondent has nothing to do with the Complainant’s platform and Trademark. The Complainant alleges that the Respondent, when he registered the disputed domain name, was undoubtedly aware of the existence of the Trademark, which he even maliciously targeted. In fact, after the Complainant approached him by email, the Respondent answered in Dutch:
“So, it is true that you are the real owner [of the Trademark]. […]
If you want, you can take over the entire package for a reasonable price -> 5000 euros
That way you get rid of us and ensure that no one else can ever start a website under this name again.”
According to the Complainant this message confirms that the Respondent is acting in bad faith and that he is maliciously targeting the Complainant, taking advantage of the reputation of the Trademark and intentionally confusing the public for commercial reasons.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Respondent did not file a Response. However, as set out in section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the consensus view of UDRP panels is that the respondent’s default does not automatically result in a decision in favor of the complainant. The Complainant must still establish each of the three elements required by paragraph 4(a) of the Policy. Although the Panel may draw appropriate inferences from the Respondent’s default, paragraph 4 of the Policy requires the Complainant to support its assertions with actual evidence in order to succeed in this proceeding. Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, the panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules. The Panel finds that in this case there are no such exceptional circumstances.
Under the Policy, the Complainant must prove 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 has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name wholly incorporates the Trademark with the addition a generic Top-Level Domain (“gTLD”). It is well established that the gTLD – in the present case “.net” – should be disregarded in the assessment under paragraph 4(a)(i) of the Policy. The Panel therefore finds that the disputed domain name is identical to the Trademark.
Consequently, the first element of paragraph 4(a) of the Policy has been met.
B. Rights or Legitimate Interests
The Complainant must make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent may rebut (e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel takes note of the various undisputed allegations of the Complainant, more particularly that the Respondent used the disputed domain name to resolve to a website which pretends to be the Complainant’s and offers online dating services for the Respondent’s own commercial gain, which use of the website connected to the disputed domain name the Panel does not consider to be in connection with a bona fide offering of goods or services, while it follows from the Complainant’s allegations that the Respondent has neither been commonly known by the disputed domain name, nor had been authorized by the Respondent to use the Trademark as part of the disputed domain name. Accordingly, the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which has not been rebutted by the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, there is evidence of registration and use of the disputed domain name in bad faith where the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location, or of a product or service offered on the Respondent’s website or location.
Although the registration of the Trademark, and its application, date from after the Respondent’s registration of the disputed domain name, the Panel notes that at the time of the registration of the disputed domain name the term “Gentstudent” had already been used by the Complainant and its founder for about four years, and, according to the Complainant’s undisputed allegation, serves as a distinctive identifier which consumers associate with the Complainant’s goods and services. Even if the Complainant could not show that it owned unregistered trademark rights in the term “Gentstudent” at the time of registration of the disputed domain name, the Panel would still be satisfied that the Respondent registered the disputed domain name with the Trademark in mind as it had already been established in paragraph 6 sub A above that the disputed domain is identical to the Trademark and the Respondent has not challenged the Complainant’s allegation that the disputed domain name was used to resolve to a website which impersonates the Complainant. See WIPO Overview 3.0, section 3.8.2. Given that the term “Gentstudent” had already been in use for several years and the Complainant filed the Trademark for registration less than two months after the Respondent registered the disputed domain name, the Panel considers is likely that the Respondent must have had the Complainant’s nascent trademark rights in mind when it registered the disputed domain name. The Panel is therefore satisfied that the Respondent registered the disputed domain name in bad faith.
The Panel further finds the Respondent’s use of the disputed domain name to pass itself off as the Complainant for commercial gain constitutes use of the disputed domain name in bad faith (e.g., Visa Europe ltd. v. Sophie Dupont, WIPO Case No. D2014-0119 and EFESO Consulting France v. Viktor Andriyan, Tir-Telecom LTD, WIPO Case No. D2018-1545). The lack of the Respondents own rights to or legitimate interest in the disputed domain name, as well evidence of actual confusion provided in the Complaint, also support a finding of bad faith. See WIPO Overview 3.0, section 3.1.4.
Furthermore, the Complainant has provided evidence of communications sent from the Respondent to the Complainant indicating an awareness of the Trademark and offering to sell the disputed domain name for EUR 5,000, an amount far in excess of the out-of-pocket costs directly related to the disputed domain name. Such evidence further supports an inference of bad faith in these circumstances.
As it has been established that the disputed domain name was registered and used in bad faith, the third element of paragraph 4(a) of the Policy has also been met.
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 <gentstudent.net> be transferred to the Complainant.
Date: August 7, 2021