Westmore · UDRP DecisionPetplantrust.live
The Panel ordered transfer of <petplantrust.live>. It found the domain confusingly similar to the Complainant’s PETPLAN trademark because the mark remained recognizable despite the addition of “trust” and the “.live” generic Top-Level Domain. The Respondent lacked rights or legitimate interests because it was not commonly known by the domain, had no authorization to use the marks, made no active use of the domain, and provided no rebuttal. Bad faith was established based on the Respondent’s actual or constructive awareness of the earlier known mark and the circumstances supporting passive holding, including the mark’s distinctiveness and reputation, the absence of a response or evidence of contemplated good-faith use, and the unanswered cease-and-desist letters.
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This decision illustrates how a domain that wholly incorporates a trademark can satisfy the first element despite adding a generic term and using a newer gTLD. It also demonstrates that inactivity does not prevent transfer where the surrounding facts support passive holding in bad faith and the respondent offers no contrary evidence.
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 Pet Plan Ltd v. Alex Vladimir, Vladimir SA Case No. D2019-0806 1. The Parties The Complainant is Pet Plan Ltd, United Kingdom (“UK”), represented by CSC Digital Brand Services AB, Sweden. The Respondent is Alex Vladimir, Vladimir SA, United States of America. 2. The Domain Name and Registrar The disputed domain name <petplantrust.live> is registered with Regtime Ltd. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2019. On April 10, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 16, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On April 17 2019, the Center sent an email communication to the Parties in both English and Russian regarding the language of the proceedings. On May 19, 2019, the Complainant filed an amended Complaint and requested English to be the language of the proceedings. The Respondent did not reply on the language of the proceedings. 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 May 1, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 21, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 23, 2019. The Center appointed Taras Kyslyy as the sole panelist in this matter on May 31, 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 based in the UK and provides pet insurance in the UK and other countries. The complainant inter alia owns relevant trademark registrations as follows: - PET PLAN, the United States of America, registration No. 3161569, filing date August 26, 2004, - PETPLAN, the European Union, registration No. 000328492, filing date July 11, 1996, registered on October 16, 2000. The Complainant also owns a number of domain names capturing PETPLAN trademark. The disputed domain name was registered on January 8, 2019 and resolves into inactive website. 5. Parties’ Contentions A. Complainant The disputed domain name is identical or confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainants trademark. Addition of generic term “trust” and gTLD “live” does not preclude the confusing similarity. The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not sponsored by or affiliated with the Complainant in any way. The Complainant never issued any permission to the Respondent to use the Complainant’s trademark in any manner. The Respondent is not commonly known by the disputed domain name. The disputed domain name resolves to an inactive website and does not demonstrate any attempt to make any legitimate use of the disputed domain name. The disputed domain name was registered significantly later than the Complainant trademarks and relevant domain names. The disputed domain name was registered and is being used in bad faith. The disputed domain name was registered well after the famous Complainant’s trademark was registered and marketed. The Respondent knew or should have known of the Complainant’s trademark while registering the disputed domain name. Passive holding of the disputed domain name does not preclude bad faith. The disputed domain name can only be taken as intending to cause confusion among Internet users as to the source of the disputed domain name and there is no plausible good faith reason for the Respondent to register and use it. The Respondent ignored cease and desist letters of the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language The language of the Registration Agreement for the disputed domain name is Russian. Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. The Panel may also order that any documents submitted in a language other than that of the proceeding be translated. However, as noted by previous UDRP panels, paragraph 11 of the Rules must be applied in accordance with the overriding requirements of paragraphs 10(b) and 10(c) of the Rules that the parties are treated equally, that each party is given a fair opportunity to present its case and that the proceeding takes place with due expedition (see, e.g. , General Electric Company v. Edison Electric Corp. a/k/a Edison Electric Corp. General Energy, Edison GE, Edison-GE and EEEGE.COM , WIPO Case No. D2006-0334 ). In deciding whether to allow the proceedings to be conducted in a language other than the language of the Registration Agreement, and to require the Complainant in an appropriate case to translate the Complaint into the language of that agreement, the Panel must have regard to all “the relevant circumstances” of the case. The factors that the Panel should take into consideration include whether the Respondent is able to understand and effectively communicate in the language in which the Complaint has been made and would suffer no real prejudice, and whether the expenses of requiring translation and the delay in the proceedings can be avoided without at the same time causing injustice to the Parties. The Complainant has submitted a request that the language of the proceedings be English. The Complainant contends that the Respondent must be familiar with the English language since (i) the Complainant is unable to communicate in Russian and necessary translation would unfairly burden the Complainant and delay the matter review, (ii) the disputed domain name is comprised of Latin letters and English words, (iii) the Respondent failed to react to several cease and desist letters sent by the Complainant in English to raise the language issue, (iv) the disputed domain name does not have any meaning in Russian. The Panel further notes that no objection was made by the Respondent to the proceeding being in English nor any request made that the proceedings be conducted in Russian, the language of the Registration Agreement. This was despite the Center notifying the Respondent in Russian and English that the Respondent is invited to present its objection to the proceedings being held in English and if the Center did not hear from the Respondent by a certain date, the Center would proceed on the basis that the Respondent had no objection to the Complainant’s request that English be the language of the proceedings. The Respondent had the opportunity to raise objections or make known its preference, but did not do so. The Panel also finds that substantial additional expense and delay would likely be incurred if the Complaint had to be translated into Russian. Taking all these circumstances into account, the Panel finds that it is appropriate to exercise its discretion and allow the proceedings to be conducted in English. B. Identical or Confusingly Similar The generic Top-Level Domain “.live” in the disputed domain name is viewed as a standard registration requirement and may be disregarded for the purposes of the confusing similarity test (see, e.g. , Rexel Developpements SAS v. Zhan Yequn , WIPO Case No. D2017-0275 ). According to section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. The disputed domain name incorporates the entirety of the Complainant’s trademark. According to section 1.8 of the WIPO Overview 3.0 where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. Addition of generic term "trust" to the disputed domain name does not prevent its confusing similarity to the Complainant's trademark. Considering the above the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name. Furthermore, the Respondent provided no evidence that it holds rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name, which could demonstrate its right or legitimate interests (see, e.g. , World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe , WIPO Case No. D2008-0642 ). The Complainant did not license or otherwise agree for use of its priory registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see, e.g. , Sportswear Company S.P.A. v. Tang Hong , WIPO Case No. D2014-1875 ). The Respondent has no rights or legitimate interests in the disputed domain name resolving to an inactive website (see, e.g. , Philip Morris USA Inc. v. Daniele Tornatore , WIPO Case No. D2016-1302 ). Considering the above the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith At the time of the registration of the disputed domain name the Respondent knew, or at least should have known about the existence of the Complainant’s priory registered and known trademark, which confirms the bad faith (see, e.g. , The Gap, Inc. v. Deng Youqian , WIPO Case No. D2009-0113 ). According to section 3.3 of the WIPO Overview 3.0 from the inception of the UDRP, panelists have found 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 this regard the Panel takes into account (i) the high degree of distinctiveness and 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, and (iii) the failure of the Respondent to address the Complainant’s cease and desist letters. Considering the above the Panel finds the disputed domain name was registered and is being used in bad faith. Therefore, the Complainant has established its case under 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, <petplantrust.live> be transferred to the Complainant. Taras Kyslyy Sole Panelist Date: June 18, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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