Westmore · UDRP DecisionVentivelux.com
The Panel ordered transfer of ventivelux.com after finding that the domain was confusingly similar to the Complainant's VELUX trademark, that the Respondent lacked rights or legitimate interests, and that the domain had been registered and used in bad faith. The domain incorporated VELUX with the prefix “venti” and resolved to a page containing links to sites offering products competing with those of the Complainant. The Respondent filed no response.
The timeline behind ventivelux.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 ventivelux.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how adding a prefix to a distinctive trademark may leave the mark readily recognizable and confusingly similar. It also demonstrates the importance of domain use: a pay-per-click page with links involving competing products supported both the absence of legitimate interests and the finding of bad-faith commercial diversion. The default did not itself decide the case, but it left the Complainant's prima facie case unrebutted and deprived the Panel of any alternative explanation for the registration and use.
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 VKR Holding A/S v. Perfect Privacy, LLC / Daniel, S. Isaac, Isaac Daniel Group, Inc. Case No. D2016-2484 1. The Parties The Complainant is VKR Holding A/S of Hørsholm, Denmark, internally represented. The Respondent is Perfect Privacy, LLC of Jacksonville, Florida, United States of America (“United States” or “US”) / Daniel, S. Isaac, Isaac Daniel Group, Inc of Miramar, Florida, United States. 2. The Domain Name and Registrar The Domain Name <ventivelux.com> is registered with Network Solutions, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2016. On December 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 8, 2016, 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. The Center sent an email communication to the Complainant on December 13, 2016 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 14, 2016. The Center verified that the Complaint together with the 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 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 4, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2017. The Center appointed Mathias Lilleengen as the sole panelist in this matter on January 10, 2017. 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 the owner of the worldwide manufacturer of roof windows and accessories, the VELUX Group, as well as the VELUX trademark. The Complainant has since the 1940s carried out its business of being a designer, manufacturer and importer of VELUX roof windows and other products such as sun tunnels, blinds and solar hot water systems. The Complainant’s primary business is in roof windows and blinds. The Complainant is based in Denmark, with presence in 40 countries throughout the world. It sells its products in approximately 90 countries. The Complainant owns 450 trademarks registrations including or incorporating the word VELUX throughout the world, including in the United States where the Respondent is located, e.g . US reg. no. 149204 of June 21, 1988 and US reg. no. 1997965 of September 3, 1996. The Complainant’s products have been advertised and sold in the United States since 1976. The Complainant spends over EUR 8 million on its marketing each year. The Domain Name was registered by the Respondent on September 26, 2014. The Domain Name resolves to a website hosting pay-per-click links. 5. Parties’ Contentions A. Complainant The Complainant provides evidence of its trademark registrations, and submits that the VELUX trademark is well-known. The Complainant argues that the Domain Name is confusingly similar to the Complainant’s trademarks. The VELUX trademark is a made up word invented by the Complainant. It is not descriptive. The Respondent has added the letters “venti” to the Complainant’s trademark in the Domain Name. The Complainant argues further that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the VELUX mark. The Respondent is not using the domain name in connection with any bona fide offering of goods or services. The Respondent’s website at the Domain Name includes links to sites offering competing products. The unauthorized use of the Complainant’s registered trademarks to provide links to sites offering competing products cannot be considered fair use. The Domain Name is not being used in tribute or criticism of a person or business. As to bad faith, the Complainant argues that the Respondent was aware of the Complainant’s trademark before the Domain Name was registered. The Respondent intends to use the Domain Name for commercial gain to misleadingly divert consumers. The Respondent is using the Domain Name to redirect Internet users to dealers promoting its competitive products by making reference to the VELUX trademark. The Respondent has not responded to the Complainant’s cease-and-desist letters. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established that it has rights in the trademark VELUX. The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name consists of the Complainant’s trademark VELUX, with the prefix “venti”. “venti” may refer to the Italian word for 20, or an abbreviation of “ventilation”. Regardless of the meaning, the overall appearance is that Domain Name is very close to the Complainant’s trademark. For the purposes of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) “.com”. The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has not granted any authorization to the Respondent to register a domain name containing its trademark or otherwise make use of its mark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way, and the Respondent is not using the Domain Name in connection with any bona fide offering of goods or services. The Respondent is not generally known by the Domain Name, and has not acquired any trademark or service mark rights in that name or mark. Taking into account that the Respondent makes unauthorized use of the Complainant’s trademark, and the Domain Name resolves to a web page with links to sites offering competing products, the Panel considers that the Respondent uses the Domain Name to misrepresent that the Domain Name is connected and/or associated with the Complainant. The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel finds that the Respondent must have been aware of the Complainant’s trademark and its business when the Respondent registered the Domain Name. It is likely that the Respondent’s intention for registering the Domain Name has been to use it for financial gain, evidenced by the fact that the Domain Name resolves to a web page with links to sites offering competing products to the Complainant’s products. The Panel finds that on the balance of probabilities the Respondent registered and has used the Domain Name for commercial gain to redirect Internet users to websites offering competing products to the Complainant’s products, with the intention of confusing Internet users into believing that the Domain Name is associated with the Complainant. This finding is supported by the fact that the Respondent has not responded to the Complainant’s cease-and-desist letters, nor to the Complaint. For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of the paragraph 4(a)(iii) of the Policy. 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 <ventivelux.com> be transferred to the Complainant. Mathias Lilleengen Sole Panelist Date: January 13, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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