Westmore · UDRP DecisionHurghada-scout24.com
The Panel ordered transfer of <hurghada-scout24.com>. It found the domain confusingly similar to the Complainant's SCOUT24 mark because it incorporated the mark in full with the descriptive geographic term “hurghada.” The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the Respondent's minimally detailed informal response did not rebut. Bad faith was found because the domain postdated the trademarks, appeared to promote competing travel services, and was probably selected with knowledge of the Complainant's marks and business to exploit their reputation for commercial gain.
The timeline behind hurghada-scout24.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind hurghada-scout24.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates the treatment of a domain that combines a trademark with a tourist destination and is apparently used in the same commercial field as the trademark owner. The geographic prefix did not dispel confusing similarity, particularly where the mark was incorporated in full and the resulting domain followed the Complainant's established pattern of descriptive-prefix SCOUT24 marks. The lack of a substantive response also left the Complainant's prima facie case and the Panel's commercial-gain inference unrebutted.
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 Scout24 Holding GmbH v. Chaled Nabulsi Case No. D2014-0577 1. The Parties The Complainant is Scout24 Holding GmbH of Munich, Germany, represented by Harmsen. Utescher, Germany. The Respondent is Chaled Nabulsi, of Elgg, Switzerland. 2. The Domain Name and Registrar The disputed domain name <hurghada-scout24.com> is registered with PSI-USA, Inc. dba Domain Robot. 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2014. On April 9, 2014, the Center transmitted by email to PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain name. On April 10, 2014, PSI-USA, Inc. dba Domain Robot 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 April 14, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 4, 2014. The Respondent sent an informal communication to the Center on April 20, 2014. The Center appointed Jonas Gulliksson as the sole panelist in this matter on May 12, 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 is a member of the “Scout24-Group”, which is one of the leading groups of online markets in Europe. The “Scout24-Group” operates on various online market places in various European countries; amongst others also travelling markets websites. The Complainant is the owner of the following numerous trademark registrations involving the term “Scout24”: - SCOUT24, Community trademark with registration No. 1677020, registered on April 23, 2008 in classes 9, 16, 35, 36, 37, 38, 39 and 42. - SCOUT24, Community trademark with registration No. 7393804, registered on August 12, 2009 in classes 1-33 and 35-45. - SCOUT24, Community trademark (fig.) with registration No. 7398738, registered on April 5, 2010 in classes 35, 26, 38, 39, 41 and 42. The trademarks above are all inter alia registered for “travel organization and arrangement, arrangement of tourist services, sightseeing, escorting of travelers”. In addition, the Complainant is the owner of the following trademark series with the distinctive element “Scout24” and a prior descriptive element: - TRAVELSCOUT24, Community trademark with registration No. 1677178, registered on October 15, 2001 in classes 9, 16, 35, 36, 37, 38, 39 and 42. - TRAVEL SCOUT 24 (fig.), Community trademark with registration No. 7389811, registered on April 5, 2010 in classes 35, 36, 38, 39, 41, 42 and 43. - LOCALSCOUT24, Community trademark with registration No. 4906244, registered on May 10, 2007 in classes 35, 36, 38, 39 and 42. - REGIOSCOUT24, Community trademark with registration No. 4906608, registered on May 10, 2007 in classes 35, 36, 38, 39 and 42. - FRIENDSCOUT 24, Community trademark with registration No. 3383271, registered on July 14, 2005 in classes 16, 38 and 41. - JOBSCOUT24, Community trademark with registration No. 1677194, registered on October 16, 2001 in classes 9, 16, 35, 36, 37, 38, 39 and 42. - IMMOBILIENSCOUT24, Community trademark with registration No. 1677210, registered on October 16, 2001 in classes 9, 16, 35, 36, 37, 38, 39 and 42. - ELECTRONICSCOUT24, Community trademark with registration No. 4427464, registered on December 11, 2008 in classes 7, 8, 9, 10, 11 and 21. - SHOPPINGSCOUT24, Community trademark with registration No. 1869619, registered on March 20, 2002 in classes 35, 38 and 42. - TICKETSCOUT24, Community trademark with registration No. 1869684, registered on November 8, 2006 in classes 39 and 41. - FINANCESCOUT24, Community trademark with registration No. 3383262, registered on September 29, 2005 in classes 9, 16, 35, 36, 38 and 42. - MEDIASCOUT24, Community trademark with registration No. 4427522, registered on July 12, 2010 in classes 7, 8, 9, 10, 11, 21, 35, 38 and 42. The majority of these last mentioned trademarks are also registered inter alia for “ travel organization and arrangement, arrangement of tourist services, sightseeing, escorting of travelers ”. The Complainant or affiliated companies are owners of the following various domain names involving the element “Scout24”: - <scout24.de> - <scout24.com> - <scout24.eu> - <travelscout24.de> - <localscout24.com> - <friendscout24.com> - <jobscout24.com> - <electronicescout24.com> - <shoppingscout24.de> - <ticketscout24.de> - <financescout24.com> - <mediascout24.com> According to WhoIs database the disputed domain name was registered on December 28, 2012. 5. Parties’ Contentions A. Complainant The Complainant has mainly stated the following: Identical and Confusingly Similar The disputed domain name is identical or nearly identical to the trademarks and domain names in which the Complainant owns exclusive rights. The disputed domain name is dominated by the element “Scout24”, since “hurghada” is a pure descriptive geographic term. “Hurghada” is a well-known tourist city located in Egypt. Moreover, the Respondent offers information about hotels and beaches in connection with the city Hurghada. This additionally shows that the term “hurghada” of “hurghada-scout24” is purely descriptive in the case at hand. Thus, the disputed domain name is solely dominated by the element “Scout24” which is identical compared to the SCOUT24 trademarks. Already for this reason, the disputed domain name is identical and confusingly similar to a trademark in which the Complainant has rights. See for instance Scout24 v. Hans Jürgen Lenk , WIPO Case No. D2011-1841 . Moreover, the disputed domain name is also confusingly similar compared to the Complainant’s trademark series. All trademarks of the series contain the distinctive element “Scout24” and a descriptive prefix. The Respondent uses the same construction in the disputed domain name. The disputed domain name is inter alia directed to German consumers, who are particularly aware of the Complainant’s trademark series. Further, the disputed domain name offers services within the “travel and tourist area”. The Complainant has successfully carried out business for many years in this area, especially under the trademark TRAVELSCOUT24. Therefore, the disputed domain name, with its identical construction of distinctive and descriptive parts leads to a false impression that the Complainant is behind the disputed domain name. Also for this reason, the disputed domain name is confusingly similar to the trademarks in which the Complainant has rights. Rights and Legitimate Interests It is established case law in WIPO’s jurisdiction that the burden is on the Complainant to prove matters concerning the Respondent’s rights or legitimate interests in the disputed domain name. These matters are exclusively within the knowledge of the Respondent and therefore often impossible to prove for the Complainant. The Respondent is – to the best of the Complainant’s knowledge – not entitled to any trademark, trade name or any other right in the names “hurghada-scout24” or “Scout24”. There is no relationship between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant nor has he otherwise obtained any authorization from the Complainant to use signs involving “hurghada-scout24” or “Scout24”, or register the disputed domain name. The Respondent has not registered the disputed domain name for a bona fide reason nor has he made any bona fide use of the disputed domain name. The use of the Complainant’s trademark SCOUT24 constitutes an infringement of the Complainant’s rights, since the Respondent is not the owner of any trademark, trade name or any other right regarding the words “hurghada-scout24” and “Scout24”. Registered and Used in Bad Faith It follows from the foregoing that the disputed domain name was registered exclusively for the purpose of exploiting the reputation of the Complainant and its trademarks, trademark series and trade name involving the element “Scout24”. Therefore, the disputed domain name was registered and used in bad faith, particularly in light of the fact that consumers are aware that the Complainant has run business in the travel field for many years under its trademarks SCOUT24 and TRAVELSCOUT24. In this regard, it should be mentioned that the Complainant had already demanded the Respondent to cease and desist its use of the disputed domain name. The Respondent did not respond in detail. B. Respondent The Respondent has mainly stated the following: The Respondent is the current registrant of the disputed domain name. 6. Discussion and Findings Paragraph 4(a) of the Policy requires the Complainant to prove all three of the following elements to be entitled to the relief sought: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant is the holder of three registered trademarks involving SCOUT24 and several trademarks involving SCOUT24 with a descriptive element. No trademark has been registered in the Respondent’s country, in this case Switzerland. Firstly, the Panel notes that the Policy does not require the trademarks of the Complainant be protected in the Respondent’s country. Therefore, the aforementioned trademarks are sufficient to initiate an action under the Policy against the Respondent. See for instance Infospace.com v. Infospace Technology Co. Ltd, WIPO Case No. D2000-0074 , and Parfums Christian Dior S.A. v. Jadore , WIPO Case No. D2000-0938 . The disputed domain name consists of the Complainant’s trademark SCOUT24 in its entirety together with the generic word “hurghada-”, and with the addition of the gTLD “.com”. The disputed domain name is solely dominated by the element “Scout24” and according to well established consensus among UDRP panels, the gTLD is generally not distinguishing. Hurghada is a well-known tourist city in Egypt. The use of “hurghada-“ as a generic word in addition to the Complainant’s trademarks cannot be distinguished enough in accordance with established case law of WIPO, thus “hurghada” is a pure descriptive geographic term. See for instance also Scout24 v. Hans Jürgen Lenk , WIPO Case No. D2011-1841 . The Panel finds the disputed domain name to be confusingly similar to the trademark SCOUT24 in which the Complainant has rights. The first element of the paragraph 4(a) of the Policy is thus fulfilled. B. Rights or Legitimate Interests The Respondent has presented an informal response with almost no details. In cases when a respondent fails to present a response with sufficient details, the Complainant is still required to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions Second Edition (“WIPO Overview, 2.0”), paragraph 2.1. , and The Vanguard Group, Inc. v. Lorna Kang , WIPO Case No. D2002-1064 and Berlitz Investment Corp. v. Stefan Tinculescu , WIPO Case No. D2003-0465 . Further, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a 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 Complainant has asserted that no permission has been granted to the Respondent to register the disputed domain name. Moreover, the Complainant has stated that the Respondent neither has rights of its own nor any legitimate interests in the disputed domain name, which entirely incorporates the Complainant’s trademark SCOUT24 or the Complainant’s trademark series. Having considered the submissions of the Complainants, and the absence of a formal response with sufficient detail from the Respondent, the Panel finds that the Respondent is not connected with the Complainants or authorized to use any of the Complainant’s SCOUT24 trademarks in the disputed domain name. Nor does the Panel find any indications that the Respondent is making a legitimate, non-commercial or fair use of the disputed domain name, or has rights or legitimate interests in any other way in the disputed domain name. In the light of what is stated above, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not proved otherwise. Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith The disputed domain name was registered in time after the registration date of the Complainant’s trademarks, but the Complainant’s trademarks are not protected by registration in the Respondent’s country. The disputed domain name involves the Complainant’s trademark SCOUT24 in its entirety and the addition of the descriptive geographic term “hurghada”. The disputed domain name seems to be used to promote travel services, which is competing business to the Complainant. Therefore, it is not probable that the Respondent has selected the disputed domain name without knowledge of the Complainant’s trademarks rights and business. Nevertheless, it seems that the Respondent has registered and used the disputed domain name for commercial gain by exploiting the reputation of the Complainant’s trademarks. Having regarded these facts, the Panel finds that the disputed domain name has been registered and used in bad faith. The Respondent has not rebutted with appropriate allegations or evidence demonstrating rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that the third and final element of the Policy is fulfilled. 7. Decision For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <hurghada-scout24.com> be transferred to the Complainant. Jonas Gulliksson Sole Panelist Date: May 26, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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