Westmore · UDRP DecisionOsram-ledriving.com
The Panel ordered transfer of <osram-ledriving.com>. It found the domain confusingly similar because it combined the Complainant’s OSRAM and LEDRIVING trademarks. The Respondent lacked rights or legitimate interests because the website did not accurately and prominently disclose its relationship with the Complainant and therefore did not satisfy the Oki Data principles. Bad faith was established from the Respondent’s evident knowledge of the marks and use of the domain to attract Internet users for commercial gain through likely confusion.
The timeline behind osram-ledriving.com
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The decision illustrates that a domain used to sell or promote genuine trademarked products does not automatically create rights or legitimate interests. Where the domain itself combines two of the owner’s marks and the website fails to accurately and prominently disclose the registrant’s relationship with the owner, reseller use may fail the Oki Data criteria and also support an inference of bad-faith commercial diversion.
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 Osram GmbH v. Spas Slavov Case No. D2015-1201 1. The Parties The Complainant is Osram GmbH of München, Germany, represented by Hofstetter, Schurack & Partner, Germany. The Respondent is Spas Slavov of Sofiq, Bulgaria. 2. The Domain Name And Registrar The disputed domain name <osram-ledriving.com> is registered with Ascio Technologies Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2015. On July 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 13, 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 July 16, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 5, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 6, 2015. The Center appointed Jonas Gulliksson as the sole panelist in this matter on August 19, 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 is a german company engaged in the field of lighting manufacturing. Furthermore, the complainant is the holder of numerous trademark registrations worldwide, for trademarks containing and/or consisting of osram (earliest registration dating back to 1906), as well as ledriving trademarks (registered in July 2011). The disputed domain name was registered on March 25, 2015. 5. Parties’ Contentions A. Complainant The Complainant belongs to the OSRAM Licht Group which was founded in Germany in 1919. The Complainant is the operative company of OSRAM Licht AG, an international joint stock company. OSRAM Licht AG employs more than 34,000 people and has operations in over 120 countries. In the financial year 2014, a revenue of about EUR 5.1 billion was achieved. It is one of the three largest lighting manufacturing companies in the world. The Complainant has traded under the name OSRAM since its foundation, and OSRAM has become the most relevant of its trademarks. The OSRAM trademark was registered on April 17, 1906, for electrical incandescent and arc lamps. The Complainant has registered more than 500 trademarks containing and/or consisting of “OSRAM”, in over 150 countries and regions. Furthermore, the Complainant is the holder of the LEDRIVING trademark, inter alia in the European Union. Due to extensive international use of the OSRAM trademarks, they have become internationally well-known. UDRP panels have in a series of cases confirmed that OSRAM is a very distinctive identifier of the Complainant and its products, and that the OSRAM trademarks are well-known worldwide. The Complainant is the owner of more than 650 domain names that incorporate “Osram”. The disputed domain name consists of the Complainant’s trademarks OSRAM and LEDRIVING. The combination of both marks is not sufficient to prevent a risk of confusion, since both marks are associated with the Complainant. To the best of the Complainant’s knowledge, the Respondent is not holder of an OSRAM trademark, and has no rights or legitimate interests in the name “Osram”. The Respondent has not registered the disputed domain name in connection with a bona fide intent, as the Respondent is not a licensee of the Complainant with regard to the trademark rights or the right to register the disputed domain name. Moreover, the Respondent is not commonly known by the disputed domain name. The Respondent is not an authorized dealer or distributor of the Complainant, nor is the Respondent in any way associated with the Complainant. Additionally, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The fact that the website for which the disputed domain name is being used contains advertisements concerning the Complainant’s products does not confer to the Respondent any right to register and use the disputed domain name. The Respondent tries to corner the market. Furthermore, the website at the disputed domain name does not refer to the fact that he has no business relationship with the Complainant whatsoever. By explaining “Are your lamps constantly under intense pressure? Or are your head lamps difficult to reach? Then take advantage of our untiring lamps which last up to three times longer than standard lamps.” the Respondent promotes his lamps. It can not be excluded that even other products than the Complainant’s are meant. In any case the Respondent exploits the fame of the Complainant’s trademarks in order to attract visitors to the website and in order to promote his goods. The Respondent has registered and is using the disputed domain name in bad faith. The Respondent does not use the disputed domain name for noncommercial interests, but is obviously trying to exploit the Complainant’s trademarks in order to attract visitors to the website and to offer his products. The Respondent’s choice to include the OSRAM and LEDRIVING trademarks in the disputed domain name clearly indicates bad faith. The sole purpose is to attract, for commercial gain, Internet users to the website. There is no other plausible reason why the Complainant’s trademarks were chosen for the creation of the disputed domain name. The Respondent has not attempted to make any bona fide use of the disputed domain name. The Respondent certainly has knowledge about the Complainant’s worldwide well-known trademarks, especially since “OSRAM ledriving” car lamps are being advertised at the website in question. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion And Findings Paragraph 4(a) of the Policy requires the Complainant to prove all three of the following elements to be entitled to the relief sought: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant is the holder of several trademark registrations for trademark containing and/or consisting of OSRAM. It is also, inter alia , the holder of the community trademark for LEDRIVING. The disputed domain name consists of the words “Osram” and “Ledriving”, with a hyphen in between, and with the addition of the generic Top-Level Domain (gTLD) “.com”. According to well-established consensus among UDRP panels, the gTLD is generally not distinguishing. In this case, the disputed domain name is identical with two of the Complainant’s trademarks combined, apart from the hyphen. The Panel finds that the difference between the disputed domain name and the Complainant’s trademarks are insufficient to avoid a finding of confusing similarity under the first element of the Policy. In accordance with the findings above the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademarks within the meaning of paragraph 4(a)(i) of the Policy, and the first element of the Policy is thus fulfilled. B. Rights or Legitimate Interests In cases when a respondent fails to present a response, the complainant is still required to make a prima facie case that the respondent lacks rights or legitimate interests in the domain name, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition (“WIPO Overview, 2.0”), paragraph 2.1 , The Vanguard Group, Inc. v. Lorna Kang , WIPO Case No. D2002-1064 , and Berlitz Investment Corp. v. Stefan Tinculescu , WIPO Case No. D2003-0465 . Further, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules. The Complainant has stated that no permission to register the disputed domain name has been granted to the Respondent. Moreover, the Complainant has stated that the Respondent has no rights of its own or legitimate interests to the disputed domain name which entirely incorporates the Complainant’s trademarks. Having considered the submissions of the Complainant, and in the absence of a formal response from the Respondent, the Panel finds that the Respondent is not connected with the Complainant or authorized to use the Complainant’s OSRAM or LEDRIVING trademarks. The Panel notices that the disputed domain name resolves to a website offering the Complainant’s products. However, as the Complainant has emphasized and in accordance with the screenshot of the website filed by the Complainant, the website in question does not accurately and prominently disclose the Respondent’s relationship with the Complainant. Furthermore, it is unclear from the record whether the Respondent is offering other products than the Complainant’s. Thus, the Panel finds that the provisions in the so-called Oki Data principles, see Oki Data Americas, Inc. v. ASD, Inc. , WIPO Case No. D2001-0903 , are not satisfied in this case. Neither does the Panel find, in the absence of a response, any other indications that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. In the light of what is stated above, the Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not proved otherwise. Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith The disputed domain name was registered on March 25, 2015, which is more than a century later than the first trademark registration for OSRAM, and several years later than the registration for LEDRIVING in the European Union. Considering the Complainant’s information about its market position — which has not been contradicted by the Respondent — as well as the fact that the Respondent is offering the Complainant’s goods on its website, it is in the Panel’s view obvious that the Respondent selected the disputed domain name with knowledge of the Complainant’s trademark rights. Furthermore, it is more likely than not that the Respondent's primary motive in relation to the registration and use of the disputed domain name was to capitalize on or otherwise take advantage of the Complainant’s trademark rights. Furthermore, it is the Panel’s view that the disputed domain name was registered and has been used with the intention of attracting Internet users for commercial gain by creating a likelihood of confusion with the Complainant’s trademarks 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 disputed domain name was registered and is being used in bad faith. The third element of the Policy is thus 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 <osram-ledriving.com> be transferred to the Complainant. Jonas Gulliksson Sole Panelist Date: September 8, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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