Westmore · UDRP DecisionAgfa.photo
The Panel ordered transfer of <agfa.photo>. It found the domain identical or confusingly similar to the Complainant’s registered AGFA marks, found no rights or legitimate interests based on the absence of authorization, evidence that the Respondent was commonly known by the domain, or evidence of fair use, and found bad-faith registration and use based on the Complainant’s extensive registrations and long use, the Respondent’s inferred notice, passive holding, and the absence of a response identifying any good-faith use.
The timeline behind agfa.photo
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 agfa.photo — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates an exact-mark domain dispute involving a semantically related new generic top-level domain. The Panel treated “.photo” as incapable of avoiding confusion with AGFA and relied on the combination of longstanding trademark rights, inferred notice, passive holding, and respondent default to find bad faith.
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 Agfa-Gevaert NV v. Otto Stroffek Case No. D2015-0460 1. The Parties The Complainant is Agfa-Gevaert NV of Mortsel, Belgium, represented by Novagraaf Belgium NV/SA, Belgium. The Respondent is Otto Stroffek, Daguer s.r.o.of Banska Bystrica, Slovakia. 2. The Domain Name and Registrar The disputed domain name <agfa.photo> is registered with Tucows Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2015. On March 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 16, 2015, 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 March 23, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 12, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 13, 2015. The Center appointed Nels T. Lippert as the sole panelist in this matter on April 24, 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. The proceeding is conducted in the English language. 4. Factual Background The Complainant is a global company active in the production and distribution of, inter alia, photographic products. The Complainant and related companies have registered the mark AGFA alone, with design, and as a formative of composite marks on a global basis for numerous goods and services, including photographic related goods in International classes 1 and 9. Representative examples include: Community Trademark (“CTM”) Registration No. 008133167 for the mark AGFA in stylized form with design, issued on February 17, 2010; CTM Registration No. 003353463 for the mark AGFA, issued on January 24, 2005; and CTM Registration No. 009440801 for the mark AGFA stylized with design, issued on January 24, 2005. Each of these CTM registrations are for a wide range of goods and services including chemical products for use in, inter alia , photographic films, plates and papers (Class 1) and apparatus, instruments, and systems for photographic applications (Class 9). The Complainant’s related company is the owner of the domain names <agfaphoto.com> and <agfaphoto.eu>. The disputed domain name <agfa.photo> was registered by the Respondent on November 19, 2014. 5. Parties’ Contentions A. Complainant The Complainant contends that it is a global company dating back to 1867 which has become widely known among the public for its products in the field of photography. It has registered the AGFA name and mark globally for goods and services in the photography sector. Because the AGFA mark is copied directly into the disputed domain name, the disputed domain name is confusingly similar to the Complainant’s trademarks. The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name because the disputed domain name does not resolve to an active website which has a bona fide offering of goods or services. Rather, the disputed domain name resolves only to a website that indicates the disputed domain name is registered. Furthermore, the Respondent is not commonly known by the disputed domain name nor has it been given consent by the Complainant to use the AGFA mark in the disputed domain name. The Complainant also contends that because the disputed domain name does not resolve to a website that carries out activities, it was registered for the sole purpose of selling, renting or otherwise transferring it. Moreover, the Respondent’s registration of the disputed domain name prevents the Complainant from registering it. In addition, the Complainant contends that the Respondent’s registration of the similar domain name, <agfafoto.eu> which likewise does not resolve to an active website, demonstrates a pattern of bad faith activity. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order for the Complainant to prevail and have the disputed domain name transferred to itself, the Complainant must prove the following (Policy, paragraph 4(a)(i-iii)): A. Identical or Confusingly Similar The Panel finds that the disputed domain name is identical in its non-generic elements to the Complainant’s registered trademarks. The generic “photo” extension does not create a new trademark or avoid confusion. Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests It is not refuted that the Respondent has no connection or affiliation with the Complainant and has received no license or consent to use the Complainant’s trademark in a domain name or in any other manner. Nor has it been demonstrated that the Respondent is commonly known by or has acquired rights in the disputed domain name. The Panel finds that the Respondent has not offered any evidence of noncommercial or fair use of the disputed domain name to refute the Complainant’s allegations. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Finally, the lack of a response to the Complaint creates an inference that the Respondent could not provide any good faith use of the disputed domain name. And, because of the extensive global registrations of the Complainant’s trademarks and long use thereof, the Panel concludes that the Respondent had actual or constructive notice of the Complainant’s trademarks prior to registering the disputed domain name. Furthermore, passive holding of a domain name that is identical or confusingly similar to another’s trademark, as is the case here, is not a bona fide use. Telstra Corporation Limited, v. Nuclear Marshmallows , WIPO Case No. D2000-0003 . Therefore, the Panel finds that the Respondent registered and uses the disputed domain name in bad faith. 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 <agfa.photo> be transferred to the Complainant. Nels T. Lippert Sole Panelist Date: May 1, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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