Westmore · UDRP DecisionAgffaa.com
The Panel ordered transfer of <agffaa.com>. It found the domain confusingly similar to the Complainant’s registered AGFA mark because it was a recognizable misspelling created by adding the letters “f” and “a.” The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the Respondent did not rebut. Bad faith was found under the passive-holding doctrine based on the mark’s reputation, the Respondent’s default, identity-related circumstances, and the implausibility of a good-faith use of the domain.
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This decision illustrates how a close misspelling of a recognizable and reputed trademark can satisfy confusing similarity even where the domain has no active website. It also shows the combined significance of an unrebutted prima facie case and passive-holding factors when the respondent defaults.
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. sale sale, aiirbot Case No. D2018-2755 1. The Parties The Complainant is Agfa-Gevaert N.V. of Mortsel, Belgium, represented by Novagraaf Belgium NV/SA, Belgium. The Respondent is sale sale, aiirbot of New York, New York, United States of America (the “United States”). 2. The Domain Name and Registrar The disputed domain name <agffaa.com> 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 November 30, 2018. On November 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 1, 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 December 4, 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 December 5, 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 December 7, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 27, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 28, 2018. The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on January 4, 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 Agfa-Gevaert N.V., a Belgian-based business that develops, produces and distributes a range of analogue and digital imaging systems and IT solutions. The Complainant is the owner, amongst others, of the following trademarks at the EUIPO: European Registration Number Trademark Registration date Classes 003353463 AGFA January 24, 2005 1, 2, 7, 9, 10, 40, 42 008820979 AGFA July 05, 2010 5 The AGFA trademark is to be considered well-known for the purposes of the UDRP. See AGFA-Gevaert N.V. v. Bernard Kwanagw , WIPO Case No. D2017-2127 . The <agffaa.com> domain name was registered on November 27, 2018 and is inactive. The Complaint was filed against an unknown respondent allegedly based on “confidential information” due to the General Data Protection Regulation (the “GDPR”). Accordingly, the Registrar provided the Respondent´s identification details. 5. Parties’ Contentions A. Complainant The Complainant asserts to be the legal owner of the AGFA trademarks. On such basis the Complainant contends that the disputed domain name <agffaa.com> is confusingly similar to the Complainant´s trademarks because it fully incorporates the trademark and the added letters constitutes a typosquatting case. Therefore, the Complainant alleges that there is a risk of confusion. With regard to the second element, the Complainant asserts that to his best knowledge the Respondent has not been commonly known by the terms “agfa” or “agffaa”. Further, the Complainant has not licensed or otherwise authorized the Respondent to use its trademark or any domain name including the AGFA trademark. Besides, the Complainant asserts that the Respondent is neither making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name since it is not resolving to an active website. Accordingly, the Respondent has no rights or legitimate interest in the <agffaa.com> domain name. Finally, the Complainant alleges that because registrant information was apparently unavailable from the Registrar it was impossible to contact the registrant, which prevented any amicable agreement to solve the matter. In any case, the Complainant highlights the famous value of the AGFA trademark time before the Respondent registered the disputed domain name. Moreover, the Complainant alleges that having registered a misspelling domain name reproducing the well-known trademark AGFA leads to the conclusion that there was an intention to attract Internet users trying to reach the Complainant´s website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order for the Panel to decide to grant the remedy of transfer of the disputed domain name to the Complainant, it is necessary that the Complainant proves, as required by paragraph 4(a) of the Policy, that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate. The Panel notes that the Complainant claims that the Respondent falls under the GDPR legal framework which has according to the Complainant resulted in the masking of the Respondent´s. Indeed, the Respondent details were publicity available on the registrar´s website when the Complaint was filed with the Center. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the disputed domain name “is identical or confusingly similar to a trademark or service mark in which the Complainant has rights”. The Panel finds that the Complainant has registered rights in the AGFA trademark. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9 expresses the consensus view of WIPO UDRP panels in relation to the first element test in cases of typosquatting: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant trademark for purposes of the first element”. It is apparent for the panel that a side-by-side comparison of the disputed domain name <agffaa.com> to the AGFA trademark shows a mere addition of letters “f” and “a” to the corresponding AGFA trademark. However, such addition of textual letters does not prevent the AGFA trademark to be recognizable within the disputed domain name. As here, where a mark is the distinctive part of a disputed domain name, the disputed domain name is considered to be confusingly similar to the registered trademark. The Panel, therefore, concludes that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel finds that the Complainant has made a prima facie showing. Indeed, the Complainant has not licensed or otherwise authorized the Respondent to use its trademark or any domain name including its AGFA trademark. Besides, the Respondent has not been commonly known by the name “agfa” or “agffaa”. Further, the disputed domain name is inactive as evidenced by the Complainant. In the present case, the Respondent did not offer any rebuttal although it was duly notified of its right to do so. If the Respondent fails to come forward with such relevant evidence, the Complainant is deemed to have satisfied the second element. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore satisfied the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith As set out above, the AGFA trademark has been considered well-known for the purposes of the Policy and was registered before the disputed domain name. Being this way, it is more likely than not that the Respondent knew about the Complainant’s trademark when the disputed domain name <agffaa.com> was registered. The disputed domain name does not resolve to an active website. In these circumstances, the WIPO Overview 3.0 , section 3.3 provides guidance how to assess the facts and evidence. The consensus view among panelists under the UDRP is that “the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding”. In the Panel view there are several factors relevant in the case to apply the passive holding doctrine: (i) the degree of distinctiveness or reputation of the complainant’s trademark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity, and (iv) the implausibility of any good faith use to which the domain name may be put. Under the above circumstances the Respondent non-use of the disputed domain name supports an inference of bad faith. Therefore, the Complainant has met the third requirement as established in paragraph 4(a)(iii) 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, <agffaa.com>, be transferred to the Complainant. Manuel Moreno-Torres Sole Panelist Date: January 16, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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