Westmore · UDRP DecisionAxiomcart.com
The Panel ordered transfer of <axiomcart.com>. It found the domain confusingly similar to the Complainant’s AXIOM-formative trademarks, that the Respondent lacked rights or legitimate interests, and that the domain was registered and used in bad faith to attract the Complainant’s customers for commercial gain through confusion. The domain was used to market mobile devices, the same product category in which the Complainant operated, and the Respondent was also domiciled in the UAE.
The timeline behind axiomcart.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 axiomcart.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates how a domain combining a trademark with an online-shopping term can remain confusingly similar and support bad faith where it is used commercially in the trademark owner’s product sector. The Panel’s analysis also shows that an activity capable of being legitimate in the abstract does not create legitimacy when the domain selection targets another party’s mark and customers.
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 Axiom Telecom L.L.C v. Aboobakkar Siddik Case No. D2018-0237 1. The Parties The Complainant is Axiom Telecom L.L.C of Dubai, United Arab Emirates (“UAE”), represented by Talal Abu-Ghazaleh International, Egypt. The Respondent is Aboobakkar Siddik of Dubai, United Arab Emirates. 2. The Domain Name and Registrar The disputed domain name <axiomcart.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 February 5, 2018. On February 5, 2018, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On February 6, 2018, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 15, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 7, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 8, 2018. The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on March 22, 2018. 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 Axiom Telecom L.L.C, a company initially registered on April 4, 1997 with the Dubai Department of Economic Development as a sole establishment under Commercial License No. 246013 and subsequently on January 18, 2000 as a Limited Liability Company under Commercial License No. 53964. The Complainant also owns various trademarks containing the word “Axiom” such as AXIOM TELECOMMUNICATIONS registered with the UAE Ministry of Economy under registration number 53848, AXIOM ME registered on June 22, 2016 with the UAE Ministry of Economy under application number 200123 and AXIOMCARE registered on June 17, 2014 with the UAE Ministry of Economy under application number 176037. The Complainant owns similar trademarks containing the word “Axiom” in various countries including Tunisia, Sudan, Morocco, Lebanon, Saudi Arabia, India and Qatar. The Complainant retails and distributes mobile devices and accessories. Its licensed partner Al Bannai LLC owns the registered domain name <axiomtelecom.com> since June 9, 1998. The Respondent registered the disputed domain name <axiomcart.com> on August 22, 2017. According to the evidence furnished by the Complainant, the disputed domain name was used for marketing of mobile devices. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant argues that “through extensive usage and the world-wide reputation, ‘Axiom’ has acquired a long standing fame.” The Complainant further argues that “‘Axiom’, ‘Axiom telecom’, ‘Axiom me’, ‘Axiom care’, and ‘Axiom plus’ are exclusively associated with the Complainant to which it owns rights over the said marks to prevent any third party from using it”. The Complainant contends that the disputed domain name <axiomcart.com> is confusingly similar to the Complainant’s trademarks “as it incorporates such trademarks in its entirety, and that the term ‘cart’ does not sufficiently distinguish the disputed domain name from the registered trademark ‘Axiom’ and does not eliminate the confusing similarity”. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant says that the Respondent is not affiliated with the Complainant in any way, has never been authorized or licensed to use the Complainant’s trademarks and has no prior rights or legitimate interests in the disputed domain name. The Complainant further contends that the disputed domain name was registered and is being used in bad faith. The Complainant argues that it is implausible that the Respondent was unaware of the Complainant’s trademarks when registering the disputed domain name. The prominent use of the trademark AXIOM on the website to which the disputed domain name resolves, the offering of the same services, the use of the same layout and the content of the Complainant’s website indicates that the Respondent is intentionally creating a likelihood of confusion with the trademark AXIOM as to the source, sponsorship, affiliation, or endorsement of the website and the services offered thereon. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Panel must render its decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable (Rules, paragraph 15(a)). The Complainant must establish each element of paragraph 4(a) of the Policy, namely: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The above elements being established, the Panel orders that the disputed domain name be transferred to the Complainant on the basis of the analysis set out below. A. Identical or Confusingly Similar The Complainant has provided sufficient evidence to establish that it owns various trademarks incorporating a part of its trade name, “Axiom”. There is also clear evidence that the Complainant has registered other trademarks such as AXIOM CARE, AXIOM PLUS, and AXIOM TELECOM. There is therefore no difficulty in finding that the Complainant has rights in the name “Axiom”. There is also no doubt that Axiom Telecom is known in the region as a distributor of mobile phones. “Axiomcart” is not identical to any of the trademarks or service marks in which the Complainant has rights. As such, it must be determined whether “axiomcart” is confusingly similar to any of the trademarks or service marks in which the Complainant has rights. The disputed domain name does integrate the trademark AXIOM. The question is whether the addition of the word “cart” would sufficiently distinguish the disputed domain name from the Complainant’s business and therefore eliminate any risk of confusion. In this regard, the Complainant has rightfully cited the case F. Hoffmann-La Roche AG v. Sandra V Alvarez R , WIPO Case No. D2015-0630 in which it was found that the insertion of “e” and “buy” before the mark VALIUM did not sufficiently differentiate the disputed domain name from the VALIUM mark. In this case, the addition of the word “cart”, by this reasoning, cannot be found to distinguish the disputed domain name from the Complainant’s registered marks and trade name. Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests As rightfully pointed out by the Complainant, it is established that a complainant’s burden of proving the lack of rights or legitimate interests is rather light. In this regard, reference is made to AT&T Corp v. rnetworld , WIPO Case No. D2006-0569 , in which it was held that: “Since it is difficult to prove a negative ( i.e. that Respondent lacks any rights or legitimate interests in the mark) – especially where the Respondent, rather than the Complainant, would be best placed to have specific knowledge of such rights or interests – and since Paragraph 4(c) describes how a Respondent can demonstrate rights and legitimate interests, a Complainant’s burden of proof on this element is light.” From the evidence provided by the Complainant, the Respondent appears to be using the disputed domain name to market mobile devices. The Complainant also markets mobile devices through the domain name <axiomtelecom.com>, which is owned by its licensed partner Al Bannai LLC. The Respondent has not been granted any rights by the Complainant to use the Axiom name in whole or in part, whether for the registration of a domain name or otherwise. The Respondent is equally not known by the disputed domain name. As such, it cannot be found that the Respondent has any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Respondent does appear to be marketing mobile devices through the disputed domain name, which may constitute a legitimate business activity. However, the choice to register a domain name that includes the Complainant’s trademark AXIOM appears to have been done in an attempt to attract business from the Complainant. Given also that the Respondent is domiciled in the UAE, it is difficult to accept that the Respondent would not have known of the Complainant and its reputation in the UAE market. The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith, in an attempt to attract, for commercial gain, the Complainant’s customers to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark. 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 <axiomcart.com> be transferred to the Complainant. Nasser A. Khasawneh Sole Panelist Date: April 8, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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