Westmore · UDRP DecisionPentair.ltd
The Panel ordered transfer of <pentair.ltd>. It found the domain identical or confusingly similar to the Complainant’s PENTAIR trademark, that the Respondent had not demonstrated rights or legitimate interests, and that the domain was registered and used in bad faith. The Panel treated the post-notice change from parking-related use to a pet-related English-language website as pretextual and found, based on the Complainant’s evidence, that the Respondent intended to sell the domain to the Complainant.
The timeline behind pentair.ltd
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 pentair.ltd — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how an exact-match trademark domain, parking-related use, an alleged high-value sale proposal, and a post-notice change of content can combine to establish all three UDRP elements. Of particular analytical significance, the Panel did not accept the later pet-themed expansion of the letters in “pentair” as creating legitimacy because the change occurred after notice and appeared pretextual.
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 Pentair Flow Services AG v. Alireza Mohammadi Case No. D2018-0474 1. The Parties The Complainant is Pentair Flow Services AG of Schaffhausen, Switzerland, represented by Roetzel & Andress LPA, United States of America. The Respondent is Alireza Mohammadi, of Istanbul Turkey. 2. The Domain Name and Registrar The disputed domain name <pentair.ltd> is registered with Nics Telekomünikasyon Ticaret Ltd. Şti. (the “Registrar”). 3. Procedural History The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2018. On March 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 4, 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. Pursuant to the Complaint submitted in English and the registrar verification dated March 4, 2018 stating that Turkish is the language of the registration agreement of the disputed domain name, on March 5, 2018, the Center sent a request in English and Turkish for the Parties to submit their comments on the language of the proceeding. On March 5, 2018, the Complainant submitted its request for English to be the language of the proceeding. On March 9, 2018, the Respondent submitted its request for Turkish to be the language of the proceeding but submitted numerous email communications and its Response in Turkish. The Center verified that the Complaint together with the amendment to 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 in English and Turkish of the Complaint, and the proceedings commenced on March 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 1, 2018. The Respondent submitted email communications but no formal Response by the Response due date. Accordingly, on April 3, 2018, the Center notified the Parties that it would proceed to Panel appointment. Upon the Complainant’s request dated April 10, 2018, the Center suspended the proceeding from April 10, 2018 to May 10, 2018, in accordance with paragraph 17(a)(iii) of the Rules. Upon the Complainant’s request dated April 27, 2018, the Center notified the Parties that the case has been reinstituted on April 30, 2018 and that it would proceed to the Panel appointment since the Response due date had expired. The Respondent submitted a Response in English on May 1, 2018. The Center appointed Dilek Ustun Ekdial as the sole panelist in this matter on May 9, 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, Pentair Flow Services AG (and its various subsidiaries and affiliates), owns rights in Turkey and in numerous other countries worldwide in and to the PENTAIR trademark and other similar trademarks and trade names containing or comprising the term “Pentair”. Further, the Complainant owns several domain names, including: <pentair.com>, registered on October 17, 1996; and <pentairwater.com>, registered on July 27, 1999. The disputed domain name <pentair.ltd> was registered on May 31, 2017 and previously resolved to a registrar parking page. It currently resolves a website related to pets with the headline “PEet Need Tenderness & Instruction Rescue”. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical to its PENTAIR trademark, since said trademark is entirely comprised in the disputed domain name. The Complainant further states that there is no significant element in the disputed domain name to distinguish it from its trademark. The Complainant also states that the Respondent lacks any rights or legitimate interests in respect to the disputed domain name. The Complainant sent a cease-and-desist letter dated December 20, 2017. Prior to that date the Respondent was not using the disputed domain name in connection with a bona fide offering of goods or services, nor was there any indication that the Respondent was making “demonstrable preparations” to do so, as the domain name merely directed users to a parking page for a Turkish registrar. As of February 22, 2018, the disputed domain name directs to a web page which serves as a parking page for and presents Internet users with a variety of domain names for purchase. The Complainant argues that such use – unauthorized by the Complainant – does not constitute a bona fide commercial use of the disputed domain name in connection with a bona fide offering of goods and services. The Complainant adds that the Respondent is not commonly known by the disputed domain name or by “pentair” and has never authorized the Respondent to use the PENTAIR trademarks. So the Respondent has no rights and legitimate interests in respect of the disputed domain name. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. Because the Complainant believes that; - The Respondent has, by using the disputed domain name, intentionally attempted to redirect Internet users seeking information on the Complainant’s products to websites displaying a registrar generated parking page incorporating links to other websites with unrelated content. - The Respondent is taking advantage of the confusing similarity between the disputed domain name and the Complainant’s PENTAIR trademarks, and upon information and belief, is presumably profiting from the goodwill associated with the Complainant’s PENTAIR trademarks. - The Respondent acquired the disputed domain name primarily for the purpose of selling it to the Complainant. The Respondent, by and through its attorney, responded to the Complainant’s cease-and-desist letter with an offer to transfer the disputed domain name to the Complainant for approximately USD 150,000. Since the Complainant’s marks were widely known, it was unlikely that the Respondent, at the time of registration of the disputed domain name or thereafter, was not aware that it was infringing the Complainant’s marks. As such, the Respondent has registered and is using the disputed domain name in bad faith. B. Respondent The Respondent sent a Response by email to the Center on May 1, 2018. In the response the Respondent stated that the Complainant arguments have no grounds and adds that he did not register or use the disputed domain name in bad faith. 6. Discussion and Findings Paragraph 15(a) of the Rules requires the Panel to decide a complaint 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. Under paragraph 4(a) of the Policy, the Complainant bears the burden of showing: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. 6.1. Language of the Proceeding Although the language of the Registration Agreement of the disputed domain name is Turkish, the Panel determines in accordance with the Rules, paragraph 11(a) that the language of this administrative proceeding shall be English. The Panel finds that it would be inappropriate to conduct the proceeding in Turkish and request a Turkish translation of the Complaint. The Panel bases its determination on the fact that the Respondent submitted his email communications and Response in English. Further to that, the disputed domain name currently resolves a website related to pets with the headline “PEet Need Tenderness & Instruction Rescue”and content in English. 6.2. Substantive Issues A. Identical or Confusingly Similar The Complainant has demonstrated that it owns valid PENTAIR trademarks, registered throughout the world. These trademarks are also reflected through registration and/or use of domain names by the Complainant, such as <pentair.com> and <pentairwater.com>. The disputed domain name <pentair.ltd> contains the Complainant’s widely known trademark PENTAIR. The extension “.ltd” is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademarks and the disputed domain name. Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to the trademark PENTAIR in which Complainant has rights, satisfying the condition of the Policy paragraph 4(a)(i). B. Rights or Legitimate Interests The Respondent has not provided any evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the disputed domain name. It is clear that the Respondent has not demonstrated any bona fide offering of goods and services by its using the disputed domain name. Nor has the Respondent shown that it has been commonly known by the disputed domain name. Rather, the evidence of the Complainant suggests that the Respondent has used the disputed domain name in an attempt to trade off the goodwill associated with the Complainant’s trademark. The Complainant also showed, inter alia , that the Respondent has neither a license nor any other permission to use the Complainant’s trademark in the disputed domain name or otherwise. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests, and the Respondent has failed to demonstrate such rights or legitimate interests. Additionally, the Panel finds the change of use of the website to reflect a website related to pets to not provide a right or legitimate interest in the disputed domain name as such change appears only after notice of the dispute and in this regard pretextual. The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Panel is of the opinion that when the Respondent registered the disputed domain name it knew that PENTAIR was the trademark of the Complainant, and that the Respondent registered the disputed domain name in bad faith. According to the evidences submitted by the Complainant, the Respondent registered and has used the disputed domain name with the intention to sell the disputed domain name to the Complainant. There is no suggestion that the Respondent had any intention of legitimate use, that it enjoys a legitimate connection to the disputed domain name or that there is conceivable good faith use for the disputed domain name. After examining all circumstances surrounding the registration and use of the disputed domain name, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith. Accordingly the Panel finds in favor of the Complainant on the third element 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 <pentair.ltd> be transferred to the Complainant. Dilek Ustun Ekdial Sole Panelist Date: May 29, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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