Westmore · UDRP DecisionOlxmobile.net
The Panel ordered transfer of <olxmobile.net> to OLX B.V. It found the domain confusingly similar to the OLX mark because OLX remained recognizable despite the addition of “mobile”; found no rights or legitimate interests where the domain promoted betting and gambling services and the Respondent supplied no rebuttal; and found bad-faith registration and use under paragraph 4(b)(iv) based on intentional commercial attraction through confusion with the well-known OLX mark.
The timeline behind olxmobile.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 olxmobile.net — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates a straightforward application of the UDRP where a domain incorporates an entire recognizable mark, adds a dictionary term, and diverts users to unrelated gambling content. The case also shows how an unrebutted prima facie case, combined with use indicating commercial diversion, can be decisive on the second and third elements.
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 OLX B.V. v. Domain Administrator, See PrivacyGuardian.org / Erika Zhang Case No. D2018-2395 1. The Parties The Complainant is OLX B.V. of Hoofddorp, Netherlands, represented by CSC Digital Brand Services AB, Sweden. The Respondent is Domain Administrator, See PrivacyGuardian.org of Phoenix, Arizona, United States of America (“United States”) / Erika Zhang of Jakarta, Indonesia. 2. The Domain Name and Registrar The disputed domain name <olxmobile.net> is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2018. On October 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 19, 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 October 23, 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 amended Complaint on October 24, 2018. 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 October 25, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 16, 2018. The Center appointed Marilena Comanescu as the sole panelist in this matter on November 27, 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. The language of the proceeding is English. 4. Factual Background The Complainant was founded in 2006 and operates as a free online classifieds platform present in over 40 countries worldwide, including in the United States, Argentina, China, India and Pakistan. Complainant owns several trademark registrations for OLX, such as the United States trademark registration No. 3626901 for the word OLX filed on October 30, 2008 and registered on May 26, 2009 for services in class 35 and the Pakistan trademark registration No. 354699 filed and registered on February 7, 2014 for services in class 36. The Complainant asserts it is one of the world’s leading online marketplaces and its trademark OLX was found as being well known in its field of activity in several UDRP decisions. See for example OLX B.V. v. Registration Private, Domains By Proxy, LLC / Javed Iqbal , WIPO Case No. D2018-0124 and cases cited therein. The Complainant owns more than 1,000 domain names incorporating the OLX trademark, the principal one <olx.com> being registered and active since February 8, 1999. The disputed domain name <olxmobile.net> was registered on July 16, 2018 and at the time of filing the Complaint it was used in connection to a webpage promoting casinos and betting activities. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to its trademark, the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests in the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The Panel will further analyze the potential concurrence of the above circumstances. A. Identical or Confusingly Similar The Complainant holds rights in the OLX trademark. The disputed domain name incorporates the Complainant’s trademark OLX in its entirety, with the addition of the word “mobile” at the end. However, such addition does not prevent a finding of confusing similarity as the Complainant’s trademark is clearly recognizable within the disputed domain name. Numerous UDRP panels have considered that the addition of other terms (whether descriptive, pejorative, meaningless or otherwise) to trademarks in a domain name is not sufficient to escape a finding of confusing similarity. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) ( e.g. , “.net”, “.info”, “.com”, “.org”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name. Given the above, the Panel finds that the disputed domain name <olxmobile.net> is confusingly similar to the Complainant’s trademark OLX, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Complainant asserts that the Respondent does not hold any trademark rights in the mark OLX, that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services. Under the Policy, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. See section 2.1 of the WIPO Overview 3.0 . The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case. There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name. The Respondent is using the disputed domain name in connection with a website promoting betting and gambling services. This is definitely not an activity falling under the circumstances listed by paragraph 4(c) of the UDRP as demonstrating Respondent’s rights or legitimate interests in the disputed domain name. Here, the Complainant’s trademark is well known in its field of activity, the Respondent did not provide any explanation for its use of the disputed domain name and the Panel cannot find anything in its favor, therefore the Panel concludes that the Respondent has registered and used the disputed domain name trying to capitalize on the Complainant’s goodwill in the mark in order to mislead Internet users. Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith The Complainant holds trademark rights since 2006. The disputed domain name was created in 2018 and incorporates the Complainant’s mark with a dictionary term. According to the records in the file, the Respondent has used the disputed domain name in relation to a website promoting third parties activities, unrelated to the Complainant. In the present case, the above circumstances are cumulated with the fact that the Respondent has registered the disputed domain name incorporating the Complainant’s well-known trademark, the Respondent has registered the disputed domain name under a privacy service and refused to participate in the present proceeding in order to put forward relevant arguments in its support. Accordingly, the Panel concludes that the provisions of paragraph 4(b)(iv) of the Policy which provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” applies in the present case and is evidence of registration and use in bad faith. Internet users searching for the Complainant would acces the website corresponding to the disputed domain name believing it belongs or is somehow associated with or endorsed by the Complainant. For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the 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 disputed domain name <olxmobile.net> be transferred to the Complainant. Marilena Comanescu Sole Panelist Date: December 10, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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