Westmore · UDRP DecisionNeuschwanstein3.com
The Panel ordered transfer of <neuschwanstein3.com>. It found the domain confusingly similar to the Complainant’s registered NEUSCHWANSTEIN marks because it incorporated the mark in full and the added numeral “3” did not avoid confusing similarity. The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the non-responding Respondent did not rebut. Bad faith registration and use were established under Policy paragraphs 4(b)(i) and 4(b)(iv) based on the offer to sell the domain for USD 299 and its use for pay-per-click links through confusion with the mark.
The timeline behind neuschwanstein3.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 neuschwanstein3.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that adding a single numeral to a trademark reproduced in full will not ordinarily remove confusing similarity where the mark remains immediately recognizable. It also shows how a sale offer and pay-per-click use can independently support bad faith under separate examples in Policy paragraph 4(b), particularly when the respondent provides no explanation or rebuttal.
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 Freistaat Bayern v. Registration Private, Domains By Proxy, LLC / Jerry Anderson, 3x Domains Case No. D2015-2122 1. The Parties The Complainant is Freistaat Bayern (the Free State of Bavaria), represented by Bayerische Verwaltung der staatlichen Schlösser, Gärten und Seen (the Bavarian Administration of State-owned Palaces, Gardens and Lakes), of Munich, Germany, represented by Bettinger Scheffelt Kobiako von Gamm, Germany. The Respondent is Registration Private, Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / Jerry Anderson, 3x Domains of Las Vegas, Nevada, United States of America. 2. The Domain Name and Registrar The disputed domain name <neuschwanstein3.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 23, 2015. On November 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 23, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. On November 27, 2015, the Complainant filed an amendment to the Complaint. The Center sent an email communication to the Complainant on November 30, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 2, 2015. The Center verified that the Complaint together with the amendment to the Complaint and amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 3, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 28, 2015. The Center appointed David Stone as the sole panelist in this matter on January 15, 2016. 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 language of the proceeding is English. No other legal proceedings have been commenced or terminated in connection with or relating to the disputed domain name. 4. Factual Background The Complainant is the Free State of Bavaria which is a public body. The Complainant owns the famous royal castle Neuschwanstein. This castle is a popular tourist attraction and is visited by approximately 1.2 million visitors from all over the world, every year. The Complainant is the largest public authority responsible for museums in Germany, turning over more than EURO 10 million per year. The Complainant has obtained trademark registrations for the term NEUSCHWANSTEIN, examples of which are provided here: Trademark Territory Registration number Priority Intl. Classes NEUSCHWANSTEIN German Trademark 30544198.1 July 28, 2005 04; 05; 15; 24; 25; 26; 27; 29; 30; 32; 33; 34; 36; 38; 39; 43; 44 NEUSCHWANSTEIN Community Trademark 010144392 July 22, 2011 3; 8; 14; 15; 16; 18; 21; 25; 28; 30; 32; 33; 34; 35; 36; 38; 44 The Respondent is the registrant of the disputed domain name, <neuschwanstein3.com>, which was registered on April 9, 2015. The Respondent appears to be an individual located in Las Vegas, Nevada, United States of America. The disputed domain name appears to be used to host links to third party websites and also states that the disputed domain name is for sale. The Respondent did not meet the deadline of December 23, 2015 for responding to the Complaint. 5. Parties’ Contentions A. The Complainant The Complainant asserts that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant also asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name on the basis that the Respondent must be aware of the Complainant due to the fame of its marks and its reputation. The Complainant submits that the disputed domain name was registered and is being used in bad faith. The Respondent is using the likelihood of confusion with the Complainant’s mark NEUSCHWANSTEIN to attract website traffic and commercially benefit from pay-per-click advertising links to unrelated third party website and potentially profit from the sale (at an inflated price) of the disputed domain name. The Complainant requests that the disputed domain name be transferred to it. B. The Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy sets out the three requirements that the complainant must prove in order to succeed: (i) that the respondent’s 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 domain name; and (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has demonstrated in the Complaint that it is the owner of rights in NEUSCHWANSTEIN, both through registration as a trademark in Germany and the European Union, and through long use. This has also been established in previous panel decisions: see Freistaat Bayern v. Michael Kutze r, WIPO Case No. D2005-0839 and Freistaat Bayern v. Jim van Dijk , WIPO Case No. D2009-0723 . Other than the addition of the number “3” at the end of the relevant part of the disputed domain name, the disputed domain name is identical to the Complainant’s trademark. The addition of the numeral “3” is insufficient to vitiate the confusing similarity. The disputed domain name wholly incorporates the Complainant’s registered trademark: The Panel therefore finds that the Complainant has satisfied the condition set out in the Policy, paragraph 4(a)(i), and that the disputed domain name is confusingly similar to the Complainant’s trademarks in which the Complainant has rights. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy sets out the criteria which determine whether a domain name registrant has rights or legitimate interests in a domain name, namely if it has a: (i) prior bona fide offering of goods or services (ii) common association with the domain name; or (iii) legitimate noncommercial use. The Complainant has set out a prima facie case further to the criteria set out above, relating to paragraph 4(c) of the Policy, demonstrating that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent did not respond to the Complaint, The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Paragraph 4(b) sets out the non-exhaustive criteria for bad faith. Bad faith constitutes the intention to register and use a domain name in order to: (i) sell, rent or transfer the domain name to the trademark owner (or a competitor thereof) for a profit; (ii) prevent the trademark owner from registering its trademark in a domain name; (iii) in order to disrupt the business of a competitor; or (iv) to divert Internet traffic for commercial gain. The Complainant has three main contentions in relation to the disputed domain name being registered and used in bad faith and has submitted evidence to this effect. First, regarding paragraph 4(b)(i) of the Policy, as already noted above, the Complainant contends that the Respondent has offered to sell the disputed domain name for the sum of $299. Second, regarding paragraph 4(b)(iii) of the Policy, the Complainant contends that the Respondent reasonably should have been aware of the existence of the Complainant’s trademarks and is presumed to have been aware. The Complainant asserts that given the invented nature of the term NEUSCHWANSTEIN, its fame and exclusive connection with the world-famous castle, the Respondent’s registration of the disputed domain name with the knowledge of the Complainant’s rights is evidence of acting in bad faith. Third, regarding paragraph 4(b)(iv) of the Policy, the Complainant submits that the Respondent is acting in bad faith by registering the disputed domain name for the commercial benefit derived from pay-per-click advertising (what the Complainant terms the earning of “click-through revenues”), which is facilitated via the intentional diversion of Internet traffic through creating a likelihood of confusion with the Complainant’s mark. The Complainant also notes that the links (as evidenced in the Complaint) are generic links which are unrelated to the Complainant. As noted above, the non-exhaustive criteria in paragraph 4(b) are not cumulative. The Panel therefore finds that the criteria in the Policy in paragraphs 4(b)(i) and 4(b)(iv), are made out, and that there is sufficient evidence to find that the Respondent registered and is using 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 <neuschwanstein3.com> be transferred to the Complainant. David Stone Sole Panelist Date: January 29, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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