Westmore · UDRP DecisionSapcloud.com
The Panel ordered transfer of <sapcloud.com> to SAP AG. It found the domain confusingly similar to SAP’s well-known SAP mark, held that the Respondent had not substantiated rights or legitimate interests, and concluded that the domain was registered and used in bad faith through a commercially motivated website containing sponsored software links and creating confusion with the SAP mark.
The timeline behind sapcloud.com
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This decision illustrates how adding a descriptive term associated with a complainant’s business can strengthen rather than dispel confusing similarity. It also shows the evidentiary importance of substantiating a claimed pre-complaint project: the Respondent’s proposed alternative explanation did not establish legitimate interests because the Panel found no sufficient evidence of demonstrable preparations, while the observable sponsored-link use pointed toward commercial exploitation of confusion.
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 SAP AG v. Peifang Huang Case No. D2014-0928 1. The Parties The Complainant is SAP AG of Walldorf, Germany, represented by Panitch Schwarze Belisario & Nadel, LLP, United States of America. The Respondent is Peifang Huang of Fujian, China. 2. The Domain Name and Registrar The disputed domain name <sapcloud.com> is registered with eNom (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 2, 2014. On June 3, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 3, 2014, 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 6, 2014, 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 11, 2014. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on June 12, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 2, 2014. The Response was filed with the Center on July 1, 2014. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on July 14, 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. Complainant The Complainant is a company incorporated in Germany and the owner of registrations for the trade mark SAP (the “Trade Mark”) in numerous jurisdictions worldwide. The Trade Mark is a well-known trade mark. B. Respondent The Respondent is an individual located in China. C. The Disputed Domain Name The disputed domain name was registered on September 21, 2011. D. The Website at the Disputed Domain Name The disputed domain name resolves to a website (the “Website”) which offers the disputed domain name for sale and provides sponsored links to websites promoting and offering for sale software products, including those of the Complainant under the Trade Mark. 5. Parties’ Contentions A. Complainant The Complainant made the following submissions in the Complaint. The Complainant was founded in 1972 and employs 55,000 people and has over 197,000 customers in over 130 countries. The Complainant is the world leader in enterprise software applications and related services, and is listed on the Frankfurt Stock Exchange and the New York Stock Exchange. The Trade Mark was ranked 25th in the 2013 Interbrand list of Best Global Brands. The disputed domain name is confusingly similar to the Trade Mark. It comprises the Trade Mark in its entirety, together with the word “cloud”. The use of the word “cloud” increases the likelihood of confusion as the Complainant offers cloud-based products under the Trade Mark. The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not affiliated with or authorised by the Complainant. The Respondent is not using the disputed domain name in respect of a bona fide offering of goods or services. The notoriety of the Trade Mark alone and the Respondent’s lack of rights or legitimate interests alone is sufficient to establish that the disputed domain name has been registered and used in bad faith. B. Respondent The Respondent made the following submissions in the Response. SAPC Loud is a very common phrase in English. There is no evidence that the Complainant has trade mark rights in respect of the phrases “SAPCLoud” and “SAPC Loud”. SAPC is a very famous music venue in Santa Monica, California. According to 49 reviews on the website “www.yelp.com”, the SAPC music venue is a very loud place. Before receiving notice of the Complaint, the Respondent was in the process of designing a website to comment on the noise levels at the SAPC music venue in March 2013. The Respondent is not a competitor of the Complainant and has not registered the disputed domain name in order to disrupt the business of the Complainant, or otherwise in order to in an intentional attempt to attract for commercial gain Internet users to the Website, by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of the Website or of a product or service on the Website. 6. Discussion and Findings The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain name by almost 40 years. UDRP panels have consistently held that domain names are identical or confusingly similar to a trade mark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name”. It is also established that the addition of generic terms to a domain name has little, if any, effect on a determination of confusing similarity between the domain name and the mark. The mere addition of a generic or descriptive term does generally not exclude the likelihood of confusion. The disputed domain name contains the Trade Mark in its entirety. The Panel concludes that the addition of the word “cloud” does not serve to distinguish the disputed domain name from the Trade Mark in any significant way, and, furthermore, is likely to increase the likelihood of confusion, given the Complainant’s use of the Trade Mark in relation to cloud-based solutions. The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark and holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name: (i) before any notice to the respondent 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 organisation) has been commonly known by the domain name even if the respondent has acquired no trade mark 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 trade mark or service mark at issue. There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by almost 40 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and the burden is thus on the Respondent to produce evidence to rebut this presumption. Notwithstanding the somewhat novel assertions of the Respondent, the Panel finds that the Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name is used in connection with a bona fide offering of goods or services. Furthermore, the Panel finds the limited submissions by the Respondent insufficient to show that the Respondent made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services before having any notice of the dispute. To the contrary, the disputed domain name has been used in respect of the Website, which has not been authorised by the Complainant, and which provides sponsored links to websites promoting software products of the Complainant and its competitors. In all the circumstances, the Panel concludes such use does not amount to a bona fide offering of goods or services under the Policy. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name. There has been no evidence adduced to show that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name. The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use of a domain name in bad faith on the part of a respondent: “By using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.” The Panel finds that the Respondent more likely than not was aware of the Complainant and had the Complainant’s Trade Mark in mind when registering the disputed domain name. The evidence demonstrates that the disputed domain name has been registered and used in order to attract Internet users to the Website for commercial gain, by creating a likelihood of confusion with the Trade Mark. This falls squarely within the example of bad faith registration and use under paragraph 4(b)(iv) of the Policy. The Panel notes in this regard that the Respondent remains responsible for the use to which the disputed domain name is put. In addition, the disputed domain name is clearly being offered for sale on the Website, although the Panel notes there is insufficient evidence to determine whether it is being offered for sale for valuable consideration in excess of the Respondent’s out-of-pocket expenses directly related to the disputed domain name (see paragraph 4(b)(i) of the Policy). For the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled. 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 <sapcloud.com> be transferred to the Complainant. Sebastian M.W. Hughes Sole Panelist Dated: July 28, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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