Westmore · UDRP DecisionGroupondisdus.com
The Panel ordered transfer of <groupondisdus.com>. It found the domain confusingly similar because it combined Complainant’s registered GROUPON mark with DISDUS, a term in which Complainant had established prior common law rights. Respondent lacked rights or legitimate interests and used the domain for sponsored links, including links to Complainant’s competitors. The Panel found this use constituted bad-faith registration and use under the Policy.
The timeline behind groupondisdus.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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The case illustrates application of the UDRP where a domain combines a complainant’s registered mark with a second identifier in which the complainant establishes common law rights. It also shows the significance of sponsored competitor links when assessing legitimate interests and bad faith, particularly where the respondent provides no 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 Groupon, Inc. v. Jan Everno, The Management Group II Case No. D2016-0307 1. The Parties Complainant is Groupon, Inc. of Chicago, Illinois, United States of America (“United States” or “U.S.”), represented by Greenberg Traurig, LLP, United States. Respondent is Jan Everno, The Management Group II of Grandville, Michigan, United States. 2. The Domain Name and Registrar The disputed domain name <groupondisdus.com> is registered with Domainhysteria.com LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 16, 2016. On February 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing Respondent’s 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 18, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 9, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 10, 2016. The Center appointed Lorelei Ritchie as the sole panelist in this matter on March 18, 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. 4. Factual Background Complainant is a global company that promotes the goods and services of others by providing a website that features coupons, rebates, and other discounts and information for consumers in various areas of commerce. Complainant has over 250 million subscribers worldwide and operates in 47 countries. Complainant has nearly 12,000 employees. Complainant owns various registrations for the mark GROUPON, including U.S. Registration No. 3,685,954 (registered 2009) and for GROUPON and design, U.S. Registration No. 4,222,645 (registered 2012) as well as for GROUPON with added terms, such as GROUPON GOODS, U.S. Registration No. 4,302,184 (registered 2013), and GROUPONICUS, U.S. Registration No. 3,994,088 (registered 2011). In 2011 Complainant purchased the Indonesian deal service Disdus, including the assets, members, name, and mark. Complainant later filed trademark applications for the DISDUS mark, which are currently pending. Complainant has common law rights to the DISDUS mark for online deal services since at least 2011. Complainant also owns the domain names <groupon.com> and <groupon.co.id> which are associated with websites from which it informs consumers about its deal services. Respondent registered the disputed domain name <groupondisdus.com> on November 2, 2014. The website associated with the disputed domain name contains sponsored advertisements including links to competitors of Complainant. Respondent has no affiliation with Complainant, nor any license to use its trademarks. 5. Parties’ Contentions A. Complainant Complainant contends that: (i) the disputed domain name <groupondisdus.com> is identical or confusingly similar to Complainant’s trademarks; (ii) Respondent has no rights or legitimate interests in the disputed domain name; and (iii) Respondent registered and is using the disputed domain name in bad faith. Specifically, Complainant contends that it is the owner of the GROUPON mark for deal services. Complainant alleges that Respondent has taken this mark and added in the DISDUS mark, which is also a common law mark owned by Complainant and used for deal services. Complainant alleges that Respondent has no legitimate interest in the disputed domain name, but is using it to link to sponsored links which are competitors of Complainant, and which is a demonstration that Respondent has registered and is using the disputed domain name in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar This Panel must first determine whether the disputed domain name <groupondisdus.com> is identical or confusingly similar to a trademark or service mark in which Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. The Panel finds that it is. The disputed domain name incorporates in full Complainant’s registered mark, GROUPON, and combines it with the term “Disdus,” which is a common law term in which Complainant has established prior rights. A complainant may establish common law rights if a mark has “become a distinctive identifier associated with the complainant or its goods or services”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), Paragraph 1.7 . Complainant has submitted evidence that it acquired the Disdus Indonesian deal service in 2011, which is prior to the date Respondent registered the disputed domain name. There is no evidence that the term “disdus” has a dictionary meaning. The Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights in accordance with paragraph (4)(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel next considers whether Complainant has shown that Respondent has no rights or legitimate interests as must be proven to succeed in a UDRP dispute. Paragraph 4(c) of the Policy gives examples that might show rights or legitimate interests in a domain name. These examples include: (i) use of the domain name “in connection with a bona fide offering of goods or services”; (ii) demonstration that respondent has been “commonly known by the domain name”; or (iii) “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”. No evidence has been presented to this Panel that might support a claim of Respondent’s rights or legitimate interests in the disputed domain name, and Respondent has no license from, or other affiliation with, Complainant. Therefore, this Panel finds that Complainant has provided sufficient evidence of Respondent’s lack of “rights or legitimate interests” in accordance with paragraph 4(a)(ii) of the Policy which Respondent has not rebutted. C. Registered and Used in Bad Faith There are several ways that a complainant can demonstrate that a domain name was registered and used in bad faith. For example, paragraph 4(b)(iv) of the Policy states that bad faith can be shown where “by using the domain name [respondent has] intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or of a product or service on [the] web site or location.” Respondent is using the website associated with the disputed domain name to link to sponsored links, presumably for its own commercial gain. Therefore, this Panel finds that Respondent registered and used the disputed domain name in bad faith in accordance with paragraph 4(a)(iii) of the Policy. 7. Decision For all 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 <groupondisdus.com> be transferred to Complainant. Lorelei Ritchie Panelist Date: March 30, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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