Westmore · UDRP DecisionOlxrepair.com
The Panel ordered transfer of <olxrepair.com>. It found the domain confusingly similar to the Complainant’s registered OLX mark because it incorporated OLX in full with the common word “repair.” The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. Based on the mark’s distinctiveness, the substantial traffic to the Complainant’s website, the timing of registration, similarities between the parties’ logos, and use of the domain for a commercial appliance-repair website, the Panel inferred registration and use in bad faith under Policy paragraph 4(b)(iv).
The timeline behind olxrepair.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The decision illustrates how a domain consisting of a distinctive mark plus a service-related common word can satisfy all three UDRP elements where it is used commercially, associated branding resembles the complainant’s branding, and the respondent provides no credible explanation. It also shows that operating a real-world service website does not by itself establish legitimacy when the choice of domain and surrounding presentation remain unexplained.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION OLX Inc. v. Mian Anees - EIT Developer Case No. D2013-2132 1. The Parties The Complainant is OLX Inc. of New York, New York, United States of America (“USA”), represented by Allende & Brea Law Firm, Argentina. The Respondent is Mian Anees - EIT Developer of Lahore, Punjab, Pakistan. 2. The Domain Name and Registrar The disputed domain name <olxrepair.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 9, 2013. On December 9, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 10, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2014. On January 3, 2014, the Center received an informal communication from Respondent. The Center appointed Alistair Payne as the sole panelist in this matter on January 9, 2014. 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 operates a website for free on-line classified advertisements in Argentina, Europe, the United States of America, China and India and registered its domain name <olx.com> in 1999. It also has subsidiaries in Pakistan, Argentina and China. The Complainant owns numerous trade mark registrations worldwide for its OLX mark including in particular trade mark registration number 3626901 in the United States dating from 2009. The Respondent registered the disputed domain name on June 13, 2013. 5. Parties’ Contentions A. Complainant The Complainant submits that it owns registered trade mark rights for its OLX mark as noted above and that its mark and website has developed a high level of repute as a consequence of the very high number of visitors and page views to its website at “www.olx.com”. For example the Complainant submits that by 2011 its website was visited by more than 200 million people and received approximately 1.9 billion page views and it submitted evidence from Google Analytics in support of corresponding high viewing figures in the 2008‑2009 period. The Complainant further submits that the substantive element of the disputed domain name is confusingly similar to its OLX mark as it wholly includes the mark together with the common and non-distinctive word “repair”. The Complainant says that it has not authorised or consented to the Respondent’s use of its OLX mark and that there is no other evidence pointing to a bona fide offering of goods or services other than the Respondent’s use of the disputed domain name to resolve to a site that offers appliance repair services in Dubai. The Complainant submits that in view of the degree of repute attaching to the OLX mark and considering the circumstances in which it alleges that the disputed domain name has been registered and used in bad faith that the Respondent has no rights or legitimate interests in the disputed domain name. As far as bad faith is concerned the Complainant says that the disputed domain name was registered in mid-2013 and by this time its OLX mark had been extensively used as noted above and therefore it is not credible that the Respondent would not have been aware of its mark when it sought registration of the disputed domain name. Further the Complainant notes that there are considerable similarities of style between its logo and the logo on the Respondent’s website which the Complainant says strengthens the inference that the Respondent knew of its interest in the OLX mark at the date of registration of the disputed domain name. The Complainant alleges that the Respondent is intentionally using the disputed domain name to attract Internet users to its website by creating a likelihood of confusion with the Complainant’s marks and accordingly has both registered and used the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Respondent forwarded an informal email to the Centre on January 3, 2014, after formal notification of the Respondent’s default. This email adds nothing to the case and the panel will therefore not take it into account as part of the record. A. Identical or Confusingly Similar The Complainant has demonstrated that it owns registered trade mark rights for its OLX mark as outlined above. The disputed domain name wholly incorporates the OLX mark and the Panel finds that the addition of the common English word “repair” does not distinguish the disputed domain name from the Complainant’s mark. The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s OLX registered trade mark right. The Complaint therefore succeeds under the first element of the Policy. B. Rights or Legitimate Interests The Complainant notes that it has never authorised the Respondent’s use of the disputed domain name, that registration occurred comparatively recently in June 2013 well after the very significant worldwide use of the Complainant’s OLX mark and that the logo on the Respondent’s website has some distinctive similarities to the Complainant’s logo in style, colour and overall appearance. The Respondent has not rebutted this prima facie case made out by the Complainant and in these circumstances the Panel finds that the Complainant has made out its case that the Respondent has no rights or legitimate interests in the disputed domain name. As a result the Complaint succeeds under the second element of the Policy. C. Registered and Used in Bad Faith The Panel finds that the Complainant’s OLX mark is highly distinctive as it is not a commonly used acronym or expression in the English language. In the circumstances that, as described earlier, the Complainant’s website at “www.olx.com” has had such an exceptional amount of web traffic since 2008 and considering that the Respondent’s registration of the disputed domain name was only undertaken in June 2013 and taking into account the more than co-incidental similarities between the respective logos, the Panel infers on the balance of probabilities that the Respondent registered the disputed domain name with knowledge of the Complainant’s activities and in bad faith. The Respondent has used the disputed domain name to resolve to a website for appliance repair services in Dubai. In all the circumstances, it seems more likely than not to the Panel that the Respondent chose to use and to include the Complainant’s mark in the disputed domain name in order to drive web traffic to its site. Had the Respondent had a bona fide explanation for its choice of domain name and provided evidence of the bona fide of its local appliance repair service business than the Complaint may not have succeeded under this element. However, in the absence of any explanation and considering the exceptional statistics of web traffic to the Complainant’s website at the domain name “www.olx.com” which also features the OLX mark, the Panel is, on balance prepared to infer that the that the Respondent has intentionally used the disputed domain name in order to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s OLX mark in terms of paragraph 4(b) (iv) of the Policy. Accordingly, the Panel finds that the Respondent both registered and used the disputed domain name in bad faith and that the Complaint succeeds under the third element of the Policy. 7. Decision 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 <olxrepair.com> be transferred to the Complainant. Alistair Payne Sole Panelist Date: January 23, 2013
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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