Westmore · UDRP DecisionDmdeutschland.net
The Panel ordered transfer of <dmdeutschland.net>. It found the domain confusingly similar to the Complainant’s distinctive DM trademark, that the Respondent lacked rights or legitimate interests, and that the domain had been registered and used in bad faith for a mobile-targeted fake raffle and phishing operation presented using the Complainant’s branding.
The timeline behind dmdeutschland.net
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 dmdeutschland.net — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how a geographical term may increase the apparent connection between a domain and a trademark owner when it corresponds to the owner’s headquarters and principal market. It also shows that device-dependent presentation—benign-looking content on desktop devices and deceptive branded content on mobile devices—can be highly significant to the rights-or-legitimate-interests and bad-faith analyses.
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 Dm-Drogerie Markt GmbH & Co. KG v. WhoisGuard Protected, WhoisGuard, Inc. / Charlotte Meilleur Case No. D2018-1248 1. The Parties The Complainant is Dm-Drogerie Markt GmbH & Co. KG of Karlsruhe, Germany, represented by HK2 Rechtsanwälte, Germany. The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama / Charlotte Meilleur of Paris, France. 2. The Domain Name and Registrar The disputed domain name <dmdeutschland.net> is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 5, 2018. On June 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2018, 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 June 6, 2018 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 amendment to the Complaint on June 6, 2018. 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 of the Complaint, and the proceedings commenced on June 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 1, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 2, 2018. The Center appointed WiIliam A. Van Caenegem as the sole panelist in this matter on July 5, 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 operates a chain of drugstores headquartered in Germany and is the largest retailer in its industry sector calculated by revenue in that country. It operates more than 3,000 stores in 12 European countries. The Complainant owns the registered trademark DM in a number of jurisdictions, inter alia , European Union (“EU”) word mark No. 011654456 registered on September 28, 2016 in multiple classes, and operates websites such as “dm.de” under various top-level domains. The disputed domain name was registered on April 28, 2018. 5. Parties’ Contentions A. Complainant The Complainant alleges that the disputed domain name is confusingly similar to its registered trademark DM. The trademark is clearly recognisable within the disputed domain name, and the addition of the country name “Deutschland” means that the disputed domain name will be perceived as a combination of the Complainant’s distinctive trademark and the country of the Complainant’s headquarters. Internet users will therefore expect a website of the Complainant when they perceive the disputed domain name. The Complainant also submits that the Respondent does not operate a legitimate fan or criticism site. Rather, when the relevant website is accessed on a mobile devise, a fake raffle is presented to Internet users which is dressed in the livery of the Complainant and was established to perpetrate an attempted phishing exercise. In other words, the registrant uses the disputed domain name to redirect users to third party websites where phishing/data mining occurs under the guise of raffles. The underlying registrant therefore registered and uses the disputed domain name in bad faith, according to the Complainant. The Complainant also points out that the underlying registrant Ms. Meilleur has not been authorized to use the Complainant’s trademarks, is not commonly known by “dm” or “dmdeutschland” and is not affiliated with the Complainant. The Complainant owns EU-trade marks which provide protection in all EU countries, including France, where the underlying registrant is apparently located. According to the Complainant the email address of the underlying registrant is connected to two other domain names which also include famous trademarks and target German Internet users: <asos-de.com> (Asos being the biggest online retailer for clothes in the United Kingdom of Great Britain and Northern Ireland) and <demediamarkt.info> (Media Markt being part of the biggest consumer electronics retailer in Europe). The Complainant alleges that this demonstrates bad faith registration and use of the disputed domain name, whereby the underlying registrant registers domain names incorporating third party trademarks for commercial gain and without any rights whatsoever. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The disputed domain name is not identical to the DM trademark of the Complainant. However, that trademark is immediately recognisable within the disputed domain name as its initial and most striking part. The trademark DM is wholly distinctive and has no inherent meaning, and the combination of that mark with the country name “Deutschland” strongly suggests a domain name affiliated with the Complainant, as the latter is headquartered in Germany. The addition of a generic term or place name is not sufficient to avoid a conclusion of confusing similarity in circumstances such as these. Therefore the Panel holds that the disputed domain name is confusingly similar to the Complainant’s DM trademark. B. Rights or Legitimate Interests The Respondent has not filed a Response to the Complaint. It is apparent that the blog that appears when the website to which the disputed domain name resolves is accessed on other than handheld devices, is nothing but a cover for a phishing operation which is put into effect on handheld devices. On such devices a fake raffle, which is dressed up in some of the Complainant’s proprietary branding, is presented to Internet users. The only aim of the supposed raffle is to obtain private details of visitors to the website. This activity is not legitimate and does not give rise to any recognised rights or legitimate interests, as it relies on deceiving Internet users by adopting a domain name that visibly includes another party’s distinctive and widely reputed trademark. The underlying registrant, who became apparent during the proceeding, is not known by the disputed domain name, has not been authorised in any way by the Complainant, and does not legitimately operate under any name or trademark in any way similar to that of the Complainant. Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Complainant’s DM trademark is highly distinctive and is very prominent in a particular consumer retail sector both in Germany and in other European countries. The Respondent could not fail to have been aware of it and of the inherent rights of the Complainant at the time of registration. This is further demonstrated by the fact that the Respondent chose to combine that trademark with the country name of the Complainant’s headquarters and most expansive area of business. Further, the establishment of an elaborate phishing scheme, based on enticing unsuspecting consumers into participating in a raffle, by means of a domain name that has a legitimate appearance, is clearly dishonest. The only goal is to rely on the deception of consumers to obtain their private details for commercial advantage of some sort. Therefore the Panel holds that the disputed domain name was registered and is used 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 <dmdeutschland.net> be transferred to the Complainant. WiIliam A. Van Caenegem Sole Panelist Date: July 19, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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