Westmore · UDRP DecisionOlxgifts.com
The Panel ordered transfer of <olxgifts.com> to OLX, Inc. It found the domain confusingly similar to the OLX trademark because the added word “gifts” was descriptive or non-distinctive. The Respondent failed to rebut the Complainant’s prima facie showing that he lacked rights or legitimate interests. Bad faith was established from the apparent targeting of the OLX mark and the prior use of the domain for a commercial fashion and gift website displaying the Complainant’s logo and creating likely confusion. The website’s subsequent disabling did not alter the Panel’s findings.
The timeline behind olxgifts.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 olxgifts.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates a straightforward trademark-targeting pattern: a distinctive mark was reproduced in full, a descriptive retail-related word was added, and the resulting domain was used for a commercial website displaying the trademark owner’s logo. The decision also shows that an unsupported alternative explanation of a domain name will not rebut a prima facie case on rights or legitimate interests, and that disabling the website before the decision does not necessarily remove the significance of documented prior use.
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. Umer Sharif Case No. D2014-1385 1. The Parties The Complainant is OLX, Inc. of New York, United States of America, represented by CSC Digital Brand Services AB, Sweden. The Respondent is Umer Sharif of Punjab, Pakistan. 2. The Domain Name and Registrar The disputed domain name <olxgifts.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 August 14, 2014. On August 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 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. On August 25, 26 and 29, 2014, the Center received e-mail communications from a person, who identified himself as the Respondent’s brother. These communications did not attempt to deal with the subject matter of the Complaint. 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 September 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 29, 2014. On September 9, 13 and 15, 2014, the Center received e-mail communications from the Respondent. The Respondent did not submit any formal Response. Accordingly, on October 2, 2014, the Center notified the Parties that pursuant to paragraph 6 of the Rules, the Center would proceed to Panel Appointment. The Center appointed George R. F. Souter as the sole panelist in this matter on October 3, 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. On October 5, 2014, the person, who had previously identified himself as the Respondent’s brother, communicated with the Center, but this communication did not deal with the issues in the Complaint. 4. Factual Background The Complainant is a leading free online classifieds platform provider. The Complainant’s services are available in over 107 countries and in over 42 languages. The Complainant’s platform, operated under its OLX trademark, is the No.1 online classifieds platform in, inter alia , India. The Complainant maintains offices in various major cities internationally, including Delhi. The Complainant’s platform receives more than 100 million monthly unique users, generating over 1.8 billion monthly page views, or 60 million page views per day. The Complainant’s trademark was registered on 2006. Details of extensive registrations of its OLX trademark have been supplied to the Panel. The disputed domain name was registered on June 24, 2014. 5. Parties’ Contentions A. Complainant The Complainant alleges that the disputed domain name is confusingly similar to its OLX trademark, containing its OLX trademark with the mere addition of the descriptive or non-distinctive element “gifts”. The Complainant alleges that the Respondent has no rights or legitimate interests in its OLX trademark, in particular that the Respondent is not generally known by the disputed domain name, and that no license or authorization of any kind has been given by the Complainant to the Respondent to use the OLX trademark. The Complainant contends that the disputed domain name has been registered in bad faith, and is being used in bad faith in connection with a website, the activity on which, prior to the website being disabled, was to run an online fashion and gift shop, offering various goods with the Complainant’s logo prominently displayed, thus the Respondent had been using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website, as stated in Paragraph 4(b)(iv) of the Policy B. Respondent The Respondent did not formally reply to the Complainant’s contentions. In one of its communications, the Respondent stated that “it was named as Opec luxurious exotic gifts. so kindly resolve this issue as soon as possible”, in an apparent attempt to justify the registration of the disputed domain name. The Respondent’s communications were not supported by evidence. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant: (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. A. Identical or Confusingly Similar It is well-established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators ( e.g. “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a trademark and a domain name. The Panel agrees with this view and considers the gTLD “.com” indicator to be irrelevant in the present case. The Panel notes that the Complainant’s rights in its OLX trademark have been recognized by panels in a number of previous decisions under the UDRP. Further, it is well-established in prior decisions under the UDRP that the mere addition to a trademark in which a complainant has clear rights of a descriptive or non-distinctive element is typically insufficient to avoid a finding of confusing similarity. In the Panel’s opinion, the word “gifts”, in the context of the Complainant’s trading activities, is clearly a descriptive or non-distinctive element. Accordingly, the Panel finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is the predominant view of panels in previous UDRP decisions, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in a domain name. In the Panel’s opinion, the Respondent did not take the opportunity afforded to it to advance any appropriate claim or evidence to rights or legitimate interests in the disputed domain name. The Panel, therefore, accepts the Complainant’s contentions (above) under paragraph 4(a)(ii) of the Policy as establishing an un-rebutted prima facie case, and, accordingly, finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Panel is of the view that the finding that the Respondent has no rights or legitimate interests in the disputed domain name, may lead, in appropriate circumstances, to a finding that the disputed domain name was registered in bad faith. In the Panel’s opinion, in the circumstances of the present case, in which the disputed domain name appears to have been “inspired” by the Complainant’s OLX trademark, makes it appropriate for the Panel to find that the disputed domain name was registered in bad faith and the Panel so finds. The fact that the disputed domain name is no longer active, does not change the Panel’s findings. The Panel considers that the Respondent had, until the website at the disputed domain name was disabled, been using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website operated under the disputed domain name, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website, as set out in paragraph 4(b)(iv) of the Policy. Consequently, the Panel finds that the disputed domain name was registered and is being used in bad faith, and that the Complainant has satisfied the requirement 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, <olxgifts.com>, be transferred to the Complainant. George R. F. Souter Sole Panelist Date: October 17, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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