Westmore · UDRP DecisionAccu-cheksugarview.com
The Panel ordered transfer of <accu-cheksugarview.com>. It found the Domain Name confusingly similar to the Complainant’s registered ACCU-CHEK and ACCU-CHEK SUGARVIEW marks, found no rights or legitimate interests, and concluded that registration and use were in bad faith. The bad-faith finding relied on the earlier and distinctive ACCU-CHEK mark, the same-day timing of the Domain Name registration and applications for ACCU-CHEK SUGARVIEW in Germany and before EUIPO, and the Domain Name’s offer for sale for USD 950.
The timeline behind accu-cheksugarview.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 accu-cheksugarview.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how unusually close timing between a trademark application and registration of a corresponding domain name can support an inference of targeting when combined with an earlier distinctive mark and an offer to sell the domain. The finding did not rest on timing alone: the Panel also relied on the established ACCU-CHEK rights, the Domain Name’s composition, the USD 950 sales listing, and the absence of any rebuttal or bona fide 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 Roche Diabetes Care GmbH v. Cebrail Kayik Case No. D2018-2622 1. The Parties The Complainant is Roche Diabetes Care GmbH of Mannheim, Germany, represented by F. Hoffmann-La Roche AG, Switzerland. The Respondent is Cebrail Kayik of Ankara, Cankaya, Turkey. 2. The Domain Name and Registrar The disputed domain name <accu-cheksugarview.com> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2018. On November 15, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 15, 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 November 21, 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 November 21, 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 November 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 19, 2018. The Center appointed Tommaso La Scala as the sole panelist in this matter on January 2, 2019. 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 – together with its affiliated companies – one of the leading manufacturers of diabetes care products. The Complainant registered the trademark ACCU-CHEK in many jurisdictions worldwide, as it can be noted by International Registration Nos. 577599, 632222 and 730653, as well as European Union Trademark Registrations Nos. 001279546 & 003426632. In addition, the Complainant also registered European Union Trademark Registration No. 017913645 ACCU-CHEK SUGARVIEW and German Trademark Registration No. 302018013729. Both ACCU-CHEK and ACCU-CHEK SUGARVIEW denotes systems for self-testing by patients with diabetes around the world. The Domain Name <accu-cheksugarview.com> was registered on June 6, 2018. The registrant of the Domain Name is Cebrail Kayik of Ankara, Cankaya, Turkey. The Domain Name resolves to a sales platform website in which the latter is offered for sale for the amount of USD 950. 5. Parties’ Contentions A. Complainant The Complainant submits that the Domain Name is identical and confusingly similar to the Complainant’s ACCU-CHEK and ACCU-CHEK SUGARVIEW trademarks, as it exactly incorporates both of them. The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not commonly known by the Domain Name, nor has been licensed by the latter, nor is it making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademarks of another. The Domain Name currently resolves to a sales platform website in which the latter is offered for sale for the amount of USD 950. In this regard, the Complainant further states that the Domain Name has been registered and used in bad faith, since the Respondent would be engaged in registering domain names similar or identical to existing trademarks or service marks in order to offer them for sale at prices representing a considerable profit over their direct costs of registration. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements: (i) the 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 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 Complainant has established its registered rights in the ACCU-CHEK and ACCU-CHEK SUGARVIEW trademarks. The Domain Name <accu-cheksugarview.com> wholly incorporates the above trademark registrations. As indicated in LEGO Juris A/S v. Ma Ying Jo /Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org , WIPO Case No. D2014-0743 , “Where a domain name includes an identical match to a complainant’s mark, a complainant has satisfied the burden of proving that the domain name is identical or confusingly similar under paragraph 4(a)(i) of the Policy”. The Panel finds that the Domain Name is confusingly similar to the Complainant’s trademark. The condition of paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests The Panel believes the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register the Domain Name exactly reproducing its trademarks. The Respondent did not respond nor provide any evidence that it is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademarks of the Complainant. Accordingly, and based on the Panel’s further findings below, the Panel finds that the condition of paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith The Panel finds that the Domain Name has been registered and is being used in bad faith. First of all, Complainant’s mark ACCU-CHEK has been registered well before the disputed Domain name and – also considering its quite distinctive nature – the Panel finds that the Respondent knew or should have known of this trademark at the time of registration of the Domain Name. As a matter of fact, a quick search on Google for ACCU-CHEK would have revealed to the Respondent that all the results retrieved are strictly related to the Complainant and its trademark. Furthermore, the fact that the Complainant’s mark ACCU-CHEK SUGARVIEW was applied for registration in Germany and before EUIPO the very same day of the Domain Name registration tends to demonstrate that the Respondent knew of the Complainant and their trademarks. Indeed, such circumstance (although it may not be sufficient to establish a pattern of conduct) is suggestive that Respondent knew of Complainant’s trade marks see, among others, Home Interiors & Gifts, Inc. v. Home Interiors , WIPO Case No. D2000-0010 . The Respondent's current use of the disputed Domain Name into a sales platform website is clearly for domain name monetization, thus not being connected with any bona fide supply of goods or services by Respondent. As indicated in Glaxo Group Ltd. v. Melissa S , WIPO Case No. D2014-0826 , “The business model in this case, is that the Respondent has observed what trade marks the Complainant is filing for then registers the corresponding domain name and offers each one for sale on GoDaddy Auctions at a price exceeding the registration price. The fact that the disputed domain names may have been registered before the Complainant had formally acquired trade mark rights in the relevant names that compose the disputed domain names does not prevent a finding of bad faith registration (see paragraph 3.1 of WIPO Overview 2.0 which reads in part ‘In certain situations, when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights, bad faith can be found’). This Panel therefore finds that each of the disputed domain names was registered in bad faith”. Accordingly, the Panel finds that the condition of paragraph 4(a)(ii) of the Policy has been satisfied. 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 <accu-cheksugarview.com> be transferred to the Complainant. Tommaso La Scala Sole Panelist Date: January 14, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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