Westmore · UDRP DecisionGarantum.com
The Panel ordered transfer of <garantum.com>. It found the domain confusingly similar to the Complainant’s Swedish GARANTUM trademark, found that the Complainant had established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests, and concluded that the domain was registered and used in bad faith. The Panel relied on the domain’s use for an online gaming website, its being offered for sale when accessed by the Panel, and the Respondent’s failure to answer the cease-and-desist letter or participate in the proceeding.
The timeline behind garantum.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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The case illustrates a transfer based on exact incorporation of a prior registered mark, an unrebutted prima facie showing under the second element, and cumulative bad-faith indicators. Particularly important was the Panel’s own observation that the domain was offered for sale, combined with the Respondent’s failure to answer either the cease-and-desist letter or the Complaint.
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 Garantum Fondkommission Aktiebolag v. Park KyoungSook Case No. D2014-0223 1. The Parties The Complainant is Garantum Fondkommission Aktiebolag of Stockholm, Sweden, represented by Domain and Intellectual Property Consultants, DIPCON AB, Sweden. The Respondent is Park KyoungSook of Gim Hae, Republic of Korea. 2. The Domain Name and Registrar The disputed domain name <garantum.com> is registered with Name.net LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2014. On February 13, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 2014, 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 February 24, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 16, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 17, 2014. The Center appointed Alejandro Garcia as the sole panelist in this matter on March 28, 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 A. The Complainant The Complainant is a company established in Sweden in 2004 and is specialised in structured investments. B. The Complainant’s Trademarks The Complainant has registered the trademark GARANTUM in Sweden as Swedish National Trademark No. 0376130 in Class 36 for financial services registered on November 4, 2005. C. The Complainant’s Domain Names The Complainant has registered a domain name containing the term “Garantum”, this is, <garantum.se>. The registration of this domain name predates the registration of the disputed domain name. D. The Respondent The Respondent did not file a response. E. The Disputed Domain Name The disputed domain name was registered on August 11, 2010. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s trademark GARANTUM. The Complainant avers that the disputed domain name reproduces the Complainant’s trademark in its entirety. As for the gLTD “com” in the disputed domain name, the Complainant argues that it is irrelevant for the purposes of the analysis under this heading. No Rights or Legitimate Interests The Complainant argues that the Respondent is not affiliated with the Complainant nor has he been authorised by the Complainant to use and register its trademark. The Complainant adds that the disputed domain name resolves to a website devoted to online gaming. This, according to the Complainant, would bolster the conclusion that the Respondent does not have legitimate interests in respect of the disputed domain name. This also would support the conclusion that the domain name was registered with a view to misleading the public with the ultimate goal of commercial profit. The Complainant finally adds that there is no evidence that the Respondent has been commonly known by the term “Garantum” or that it is making a legitimate non-commercial or fair use of the disputed domain name. Registered and Used in Bad Faith As for the requirement of bad faith registration and use, the Complainant argues that the Respondent was aware of the Complainant’s trademark and its business at the time of registration of the disputed domain name. The disputed domain name was registered at least five years after the GARANTUM trademark was registered by the Complainant. The Complainant adds that the domain name was registered with a view to diverting traffic, thus with the goal of profiting from the likelihood of confusion between the trademark GARANTUM and the disputed domain name. The Complainant indicates that a cease and desist letter was sent to the Respondent on January 9, 2014. No answer was received to this letter. Relief Requested The Complainant seeks the transfer of the disputed domain name <garantum.com>. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Applicable Test Under paragraph 4(a) of the Policy, the Complainant has the burden of proving that: (i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; 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. B. Identical or Confusingly Similar The Complainant has established to the Panel’s satisfaction that it has rights in respect of the trademark GARANTUM. The dominant part of the disputed domain name is the term “Garantum”. This term is identical to the GARANTUM trademark registered by the Complainant in Sweden. The gTLD “.com” is insufficient to prevent the existence of confusion with the Complainant’s trademark. In the circumstances, the Panel concludes that the disputed domain name <garantum.com> is confusingly similar to the Complainant’s trademark GARANTUM within the meaning of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out three non-exclusive examples under which a respondent can demonstrate that it has rights or legitimate interests in a domain name: “(i) Before any notice […] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the domain name or a name corresponding to the 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 domain name, even if [the respondent has] acquired no trademark or service mark rights; or (iii) [The respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain[,] to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” In this case, particularly in light of the use of the disputed domain name in respect of an online gaming website (as set out in the Complainant’s evidence), the Panel concludes that the Complainant has made a prima facie case that the Respondent does not have rights or legitimate interests and that none of the circumstances set out in paragraph 4(c) of the Policy apply. The Respondent did not participate in these proceedings, and thus has not challenged or sought to rebut the Complainant’s contentions. Accordingly, the Complainant meets the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith In light of the circumstances of this case and the uncontroverted evidence furnished by the Complainant, the Panel is satisfied that the disputed domain name was registered and is used in bad faith. Moreover, at the time of this decision, the Panel accessed the website linked to the disputed domain name. The website indicated that the domain name is on sale. This cannot but bolster the conclusion that the disputed domain name was registered and is used in bad faith. Furthermore, in the Panel’s view, the fact that the Respondent did not participate in these proceedings and did not respond the cease and desist letter sent by the Complainant also points to the conclusion that the disputed domain name was registered and is used in bad faith. As a result, the Panel concludes that the Complaint meets the requirements of paragraph 4(a)(iii) 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 <garantum.com> be transferred to the Complainant. Alejandro Garcia Sole Panelist Date: April 10, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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