Westmore · UDRP DecisionAgfastore.com
The Panel ordered transfer of <agfastore.com>. It found the domain confusingly similar to Complainant’s registered AGFA mark because it merely added the dictionary word “store.” Respondent lacked rights or legitimate interests because the parties were unaffiliated, Respondent was unauthorized, there was no evidence Respondent was commonly known by the domain, and the website’s offering was found to reflect an effort to pass off as Complainant. Although Complainant did not substantiate its allegation that AGFA was famous, the Panel found on the balance of probabilities that Respondent targeted the distinctive AGFA mark and used confusion to attract consumers for commercial gain. The domain’s subsequent inactive status was treated as further evidence of bad faith.
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This decision illustrates that failure to prove an asserted mark’s fame need not defeat a complaint where other record evidence supports targeting. The Panel relied on the mark’s distinctiveness, the domain’s incorporation of the mark with a retail term, Respondent’s commercial website, the health-related character of the products, and the unrebutted allegation of awareness. It also shows that subsequent inactivity may reinforce, rather than erase, bad faith established through earlier commercial 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 AGFA-Gevaert N.V. v. agfa azzalea / agfastore Case No. D2018-1673 1. The Parties Complainant is AGFA-Gevaert N.V. of Septestraat Mortsel, Belgium, represented by Novagraaf Belgium NV/SA, Belgium. Respondent is agfa azzalea / agfastore of Jawa Barat, Indonesia. 2. The Domain Name and Registrar The disputed domain name <agfastore.com> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2018. On July 24, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 25, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on July 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 15, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 16, 2018. The Center appointed Robert A. Badgley as the sole panelist in this matter on August 23, 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 Complainant is a diversified manufacturer of various products sold business-to-business, such as chemical products used for photographic and other applications, toners and printing inks, cleaning products used in the printing process, printing machines and parts for printing machines or systems, “medical, surgical, cardiological, veterinary and dental apparatus and instruments,” medical and x-ray-related products and instruments, plastic films for industrial applications, polyester and other fabric for use in digital printing, and other products and applications. Complainant holds a number of trademark registrations for the mark AGFA. For example, Complainant holds European Union Intellectual Property Office (“EUIPO”) Registration No. 003353463 registered on January 24, 2005, EUIPO Registration No. 015598113 registered on February 27, 2017, and EUIPO Registration No. 008820979 registered on May 7, 2010. The latter AGFA mark is registered in connection with “pharmaceutical and other preparations for medical purposes…” The Domain Name was registered on March 13, 2018. At the time of the filing of the Complaint, the Domain Name resolved to a website offering health and beauty products for sale. The products offered at Respondent’s online “Agfa Store” include goods which are claimed to “protect from germs,” “reduce inflammation,” “make skin healthier,” and “help protect the body from skin cancer.” Currently, the Domain Name does not resolve to an active website. 5. Parties’ Contentions A. Complainant Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name. According to Complainant, its AFGA marks are “so famous that Respondent could not ignore the preexistence of Complainant’s trademark rights” and “must have been fully aware of [the marks] when selecting the [Domain Name].” B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel concludes that Complainant has rights in the mark AGFA through registration and use. The Panel finds that the Domain Name is confusingly similar to the AGFA mark. The Domain Name merely adds the dictionary word “store” to the mark, which does nothing to prevent the confusing similarity between the mark and the Domain Name. Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or (ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are making a 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. The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not come forward to articulate or defend his motives in registering the Domain Name. It is undisputed that Respondent is unaffiliated with Complainant and has not been authorized by Complainant to use the AGFA mark. There is also no evidence that the Respondent has been commonly known by the Domain Name. The unauthorized offering of products at a website which, by its contents, reflects an effort by Respondent to pass himself off as Complainant, is not a bona fide offering of goods and services. Complainant has established Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or (ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent has registered and used the Domain Name in bad faith. The Panel finds it more likely than not that Respondent had Complainant’s AGFA mark in mind when registering the Domain Name. Complainant alleges that its AGFA mark is famous and that Respondent must have had it in mind when registering the Domain Name. Complainant offered no evidence to support the claim that AGFA is a famous mark. Nonetheless, the mark is distinctive (as far as the Panel is aware and based on the record, the mark does not correspond to a particular dictionary word), and, more importantly, Respondent has not disputed the clear allegation that he was aware of the AGFA mark when registering the Domain Name. The Panel also observes that the products sold at Respondent’s website may be said to fall within the area of health-related products, and Complainant does operate on that sector under the AGFA mark (albeit in connection with rather different types of products). In these circumstances, the Panel concludes on a balance of probabilities under this record that Respondent more likely than not had Complainant’s mark in mind when registering the Domain Name. Having found it more likely than not that Respondent targeted Complainant’s AGFA mark, it follows that Respondent has used the Domain Name in bad faith within the meaning of the above-quoted Policy paragraph 4(b)(iv), by using the Domain Name to lure consumers to Respondent’s website by creating confusion between the Domain Name and the AGFA mark. Currently the Domain Name does not resolve to an active website. In the circumstances, this is further evidence of Respondent’s bad faith. Complainant has established Policy paragraph 4(a)(iii). 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 Domain Name <agfastore.com> be transferred to Complainant. Robert A. Badgley Sole Panelist Date: August 25, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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