Westmore · UDRP DecisionPorscheoflasvegas.com
The Panel ordered transfer of <porscheoflasvegas.com>. It found that the Domain Name incorporated the well-known PORSCHE mark in its entirety and that the geographic wording “oflasvegas” did not avoid confusing similarity. The Respondent had no authorization, was not commonly known by the Domain Name, made no bona fide use, and filed no response. Based on the notoriety of the mark, passive holding, the Respondent’s default, and what the Panel characterized as concealment of identity, the Panel found registration and use in bad faith.
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The case illustrates how a domain combining a famous automotive mark with local geographic wording suggestive of an official dealership can satisfy the Policy even without an active website. The decision is particularly relevant to passive-holding disputes where earlier trademark rights, mark notoriety, lack of authorization, respondent silence, and the absence of a credible legitimate purpose operate cumulatively.
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 Dr. lng. h.c. F. Porsche AG v. J Hitt Case No. D2014-1681 1. The Parties The Complainant is Dr. lng. h.c. F. Porsche AG of Stuttgart, Germany, represented by Lichtenstein, Körner & Partners, Germany. The Respondent is J Hitt of Las Vegas, Nevada, United States of America (“US”). 2. The Domain Name and Registrar The disputed domain name <porscheoflasvegas.com> (the “Domain Name”) is registered with Domain.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 26, 2014. On September 26, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 26, 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 October 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was October 23, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 24, 2014. The Center appointed Nuno Cruz as the sole panelist in this matter on November 11, 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 the world famous manufacturer of sports cars sold under the trademark PORSCHE. It has carried on business under that name for over 70 years. Porsche cars are distributed worldwide through a network of official dealers. The Complainant operates its website at “www.porsche.com’’. The Complainant is the owner of numerous trademark registrations in respect of the mark PORSCHE in most countries of the world for a range of goods and services including International trademark no. 562572 PORSCHE, registered on October 27, 1990, and US trademark no. 0618933 PORSCHE registered on January 10, 1956 in respect of automobiles and parts thereof. The Domain Name was registered on July 7, 2006. According to the WhoIs record, the Respondent’s name is “J Hitt” from the organization named Ultra of Las Vegas, US. The Respondent and the organization “Ultra” are not listed in any source unrelated to the WhoIs records. A Google search for the Respondent yields dozens of domain name registrations of which a considerable number is related to lighting. One of these domain names redirects to a website dedicated to a 2010 and 2011 event called “TheLEDAward”. There is no further information as to who operates the website but the registrant, although named differently, appears to be the Respondent or given the contact details, someone closely related to it. Also, at the same physical address of the Respondent exists a business entity named “The Lightning Group” operating through the domain name <thelightinggroup.com>. Another website that has likewise been registered by the Respondent or someone closely related to it, as they share the same physical address, is <ebayebooks.com>. The Domain Name has never resolved to a website. The Complainant sent a letter to the Respondent demanding that the Domain Name in dispute be transferred but never received a response. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its PORSCHE trademark as it contains the PORSCHE trademark in its entirety. The addition of the generic and descriptive words “oflasvegas” indicates an official dealership in the city of Las Vegas. According to the Complainant, the Respondent has no rights or legitimate interests in respect of the Domain Name as Respondent is not affiliated or related to PORSCHE in any way. Neither is there a use nor are there any preparations to use the Domain Name with a bona fide offering of goods or services. The Respondent is also not commonly known by the Domain Name. Finally, the Respondent has registered and uses the Domain Name in bad faith. According to the Complainant, there are no conceivable circumstances under which a legitimate use of such a domain name could be imagined. Any use would infringe the Complainant’s trademark because the Domain Name itself indicated an official dealership. In addition, the Respondent must have been aware of the trademark because it is known all over the world. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must first of all establish rights in a trademark or service mark and secondly, it must demonstrate that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant has established that it is the owner of numerous trademark registrations for the trademark PORSCHE. The Panel notes that Complainant’s registrations predate the creation date of the Domain Name. The Domain Name <porscheoflasvegas.com> incorporates the entirety of the well-known PORSCHE trademark as its distinctive element. Many UDRP decisions have found that a domain name is confusingly similar to a complainant’s trademark where the domain name incorporates the trademark in its entirety. The addition of the common, descriptive and non-distinctive geographic elements “oflasvegas” is insufficient to avoid a finding of confusing similarity. Accordingly, the Panel finds that the first element of the Policy is established, and the Complainant has proven that the Domain Name <porscheoflasvegas.com> is identical to its trademark PORSCHE pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests In the opinion of the Panel, the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. Neither is there a use nor are there any preparations to use the Domain Name with a bona fide offering of goods or services. The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register the Domain Name incorporating its marks. The Respondent is not commonly known by the Domain Name nor has it acquired trademark rights. Although properly notified by the Center, the Respondent failed to submit any response in the present proceedings. Considering other relevant circumstances, the silence of a respondent may support a finding that it has no rights or legitimate interests in respect of the domain dame. See also Alcoholics Anonymous World Services, Inc., v. Lauren Raymond , WIPO Case No. D2000-0007 ; Ronson Plc v. Unimetal Sanayi ve Tic.A.S , WIPO Case No. D2000-0011 . For all these reasons, the Panel finds that the second element of the Policy is established, and the Respondent has no rights or legitimate interests in respect of the Domain Name, pursuant to the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith The Panel considers it self-evident in view of the notoriety of the PORSCHE trademark and the nature of the website that the Respondent must have had the Complainant in mind when it registered the Domain Name. In view of the Panel’s finding that the Respondent has no rights or legitimate interests in the Domain Name, it follows that the Domain Name was registered in bad faith. Further, the Respondent chose not to participate in these proceedings did not contest any of the allegations made by the Complainant, and did not provide any evidence whatsoever of any legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or tarnish the Complainant’s trademark. Such passive attitude of the Respondent can be considered further evidence of bad faith. See also Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 ; Kabushiki Kaisha Toshiba v. Shan Computers , WIPO Case No. D2000-0325 ; Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787 . Moreover, the choice of the Respondent to hide its identity when registering the Domain Name is also, at least in combination with other circumstances, a further indication of bad faith. At the time of drafting the Decision, the Domain Name was still inactive. As previously mentioned, passive holding can, in certain circumstances, constitute bad faith use. In the present case, the Respondent registered a domain name reproducing exactly a third party’s well-known trademark, hid its identity, chose not to participate in the proceedings and thus failed to provide any arguments in its defense. For all these reasons, the Panel finds that the third element of the Policy is established on the record in these proceedings, and accordingly that the Domain Name was registered and is being used in bad faith, pursuant to the Policy, paragraph 4(a)(iii). 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 Domain Name <porscheoflasvegas.com> be transferred to the Complainant. Nuno Cruz Sole Panelist Date: November 25, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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