Westmore · UDRP DecisionPlustransfer.com
The Panel denied the Complaint because the Complainant failed to establish that <plustransfer.com> was identical or confusingly similar to its stylized WETRANSFER trademark. Although both contained the descriptive term “transfer,” the Panel found that “plus” replaced “we,” that the trademark was not visually recognizable in the domain name, and that the two were not aurally identical or confusingly similar. The Panel did not reach the second or third UDRP elements, although it noted that the Respondent appeared to be making a bona fide offering and that the domain name did not appear to have been registered or used in bad faith.
The timeline behind plustransfer.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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This decision illustrates that use of the same descriptive service-related word may be insufficient to establish confusing similarity where the remaining portions of the trademark and domain name differ and the trademark is not recognizable in the domain. It is also notable because the Complaint failed at the first element despite the parties offering similar services.
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 WeRock B.V. v. Vaclav Prusek Case No. D2014-2181 1. The Parties The Complainant is WeRock B.V. of Amsterdam, Netherlands, represented by de Merkplaats B.V., Netherlands. The Respondent is Vaclav Prusek of Mnichovo Hradiště, Czech Republic, represented by Glatzova & Co., Czech Republic. 2. The Domain Name and Registrar The disputed domain name <plustransfer.com> is registered with CSL Computer Service Langenbach GmbH dba Joker.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2014. On December 15, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 16, 2014, the Registrar transmitted by email to the Center its verification response confirming the Respondent as the registrant and providing 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 proceeding commenced on December 19, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was January 8, 2015. The Response was filed with the Center on January 7, 2015. The Center appointed Luca Barbero as the sole panelist in this matter on January 21, 2015. 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 was founded in 2009 and operates an online platform which allows the transfer of files — such as videos, photos and work files — through the Internet. The Complainant is the owner of the Community Trade Mark No. 011633047 for WETRANSFER (figurative mark), filed on March 7, 2013 and registered on August 1, 2013, in classes 9, 35 and 38. The disputed domain name <plustransfer.com> was registered on November 11, 2013 and is used in connection with services similar to the ones provided by the Complainant. 5. Parties’ Contentions A. Complainant The Complainant points out that it has transferred millions of files to every corner of the world, having built up a sustainable international reputation. The Complainant contends that the disputed domain name is confusingly similar to its registered trademark WETRANSFER since they both include the term “transfer”, consist of three syllables and are used for the same services. The Complainant asserts that the Respondent has no rights or legitimate interests in the disputed domain name since the Respondent is not commonly known by the disputed domain name. The Complainant further states that the Respondent is using the disputed domain name for commercial gain since, when a user sends files through the Respondent’s service, it is presented with advertisements on the background, for the publication of which the Respondent receives a payment. The Complainant submits that the Respondent registered the disputed domain name in bad faith since, at the time of registration, the Complainant was already using the trademark WETRANSFER since four years and had developed a sustainable international reputation. In addition, at that time, the Complainant had already filed its Community Trade Mark application for WETRANSFER. The Complainant also asserts that, in light of the reputation of the Complainant’s trademark and website and of their use in connection with identical services, the Respondent must have been aware of the exclusive rights of the Complainant. The Complainant further alleges that the Respondent is using the disputed domain name in bad faith since he is using a domain name confusingly similar to the Complainant’s trademark to provide services identical to the Complainant’s services, leading the public to believe that the parties in this proceeding are economically related and causing confusion, mistake or deception besides dilution of the Complainant’s rights. B. Respondent The Respondent requests the Panel to deny the remedy requested by the Complainant. He states that he started operating an online platform for transferring files in November 2011 under the domain name <datovauloziste.cz> and that, when he decided to offer his services globally, he found that the disputed domain name was “ideal for the services he offered”. The Respondent explains that the word “transfer” in the disputed domain name conveys the message to the customers that services of transferring files are provided while the term “plus” used as prefix suggests that these services have some extra functionalities in comparison with similar platforms. The Respondent asserts that, since the registration of the disputed domain name, he has spent a significant amount of money to improve and promote his services offered on the “www.plustransfer.com” platform, having become quite popular and having gained many regular users. The Respondent informs the Panel that the Complainant sent a cease and desist letter to his attention, in May 2014, requesting the transfer of the disputed domain name and to cease the use made on the corresponding website, alleging that the Respondent had copied the look-and-feel of the Complainant’s website. The Respondent denied the Complainant’s allegations but however changed the layout of his website to accommodate the Complainant’s concerns. The Complainant initially confirmed that the changes made by the Respondent were fine but, in November 2014, it approached the Respondent again reiterating its initial claims notwithstanding the fact that the website was not further modified. The Respondent states that the disputed domain name is not confusingly similar to the trademark WETRANSFER of the Complainant since it is constituted of the generic term “transfer”, which is inherently descriptive where services of online transferring of files are concerned, and “plus”, having a well-understood English meaning. The Respondent contends that the addition of the prefix “plus” is sufficient to distinguish the disputed domain name from the Complainant’s trademark and highlights that, furthermore, the Complainant’s registered trademark WETRANSFER filed before the registration of the disputed domain name is in stylized form. The Respondent states that he has used the disputed domain name in connection with a bona fide offering of goods before receiving notice of the dispute and that he has a legitimate interest in offering the services of transfer of files on the Internet using the disputed domain name. The Respondent concludes that there is no compelling evidence to suggest that the registration of the disputed domain name was made in bad faith. 6. Discussion and Findings A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires that the Complainant demonstrate that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. As mentioned in the factual section, the Complainant has provided evidence of ownership of a Community Trade Mark registration for WETRANSFER in stylized form. The Panel notes that the disputed domain name <plustransfer.com> and the Complainant’s trademark WETRANSFER both include the descriptive term “transfer”. Typically, the test under the first element involves a straight forward visual or aural comparison of the trademark with the alphanumeric string in the domain name. In the case at hand, the term “plus” appears before “transfer” in the disputed domain name, replacing “we” in the Complainant’s trademark; both “plus” and “we” are descriptive terms and arguably associated with services both parties offer. Visually, the Complainant’s trademark is not recognizable in the disputed domain name, and aurally, the disputed domain name cannot be said to sound identical nor confusingly similar to the Complainant’s trademark. Therefore, the Panel finds that the disputed domain name is not similar to the Complainant’s trademark to satisfy the first element of the Policy. Although the Complainant has failed under the first element, and it is therefore not necessary to examine the second and third elements of the Policy, the Panel notes that the Respondent appears to use the disputed domain name in connection with a bona fide offering of goods and services, and that the disputed domain name does not appear to have been registered or used in bad faith. 7. Decision For the foregoing reasons, the Complaint is denied. Luca Barbero Sole Panelist Date: February 3, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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