Sennheiser-hearings.com

The timeline behind sennheiser-hearings.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

ARBITRATION AN D MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Sennheiser electronic GmbH & Co. KG v. Jesse Pinkman Case No. D2023-4399 1. The Parties The Complainant is Sennheiser electronic GmbH & Co. KG, Germany, represented by Bardehle Pagenberg Partnerschaf t mbB, Germany. The Respondent is Jesse Pinkman, India. 2. The Domain Name and Registrar The disputed domain name <sennheiser-hearings.com> is registered with Cosmotown, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 24, 2023. On October 24, 2023, the Center transmitted by email to the Registrar a request f or registrar verif ication in connection with the disputed domain name. On October 25, 2023, the Registrar transmitted by email to the Center its verif ication response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent (N/A) and contact information in the Complaint. The Center sent an email communication to the Complainant on October 26, 2023, providing the registrant and contact inf ormation disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant f iled an amendment to the Complaint on October 27, 2023. The Center verif ied that the Complaint together with the amendment to the Complaint satisf ied the f ormal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” o r “UDRP”), the Rules f or Unif orm Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules f or Unif orm Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center f ormally notif ied the Respondent of the Complaint, and the proceedings commenced on October 30, 2023. In accordance with the Rules, paragraph 5, the due date f or Response was November 19, 2023. The Respondent did not submit any f ormal response. The Respondent sent email communications to the Center on October 30, and November 24, 2023. Accordingly, the Center notified the Commencement of Panel Appointment Process on November 24, 2023. page 2 The Center appointed Edoardo Fano as the sole panelist in this matter on November 28, 2023. The Panel f inds 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 Panel has not received any requests f rom the Complainant or the Respondent regarding f urther submissions, waivers or extensions of deadlines, and the Panel has not f ound it necessary to request any f urther inf ormation f rom the Parties. Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to [the] Respondent”. Theref ore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benef it of a f ormal response f rom the Respondent. The language of the proceeding is English, being the language of the Registration Agreement, as per paragraph 11(a) of the Rules. 4. Factual Background The Complainant is Sennheiser electronic GmbH & Co. KG, a German company operating in the audio technology f ield, and owning several trademark registrations f or SENNHEISER, among which: - International Trademark Registration No. 670839 f or SENNHEISER, registered on March 6, 1997; - European Union Trade Mark Registration No. 000370122 f or SENNHEISER, registered on August 27, 1999; - International Trademark Registration No. 590780 f or SENNHEISER and design, registered on August 10, 1992. The Complainant also operates on the Internet, its main website being “www.sennheiser.com”. The Complainant provided evidence in support of the above. According to the WhoIs records, the disputed domain name was registered on September 8, 2023, and it directs to an inactive website. However, before the Complaint was filed the disputed domain name resolved to a website in which the Complainant’s trademark and logo were reproduced, pretending to be a Complainant’s of f icial website. 5. Parties’ Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy f or a transf er of the disputed domain name. Notably, the Complainant states that the disputed domain name is conf usingly similar to its trademark SENNHEISER, as the disputed domain name wholly contains the Complainant’s trademark with the addition of the generic term “hearings”. Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register the disputed domain page 3 name or to use its trademark within the disputed domain name, it is not commonly known by the disputed domain name and it is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name resolved to a website in which the Complainant’s trademark and logo were reproduced, pretending to be a Complainant’s of f icial website. The Complainant submits that the Respondent has registered the disputed domain name in bad f aith, since the Complainant’s trademark SENNHEISER is distinctive and well known in the audio technology f ield. Theref ore, the Respondent targeted the Complainant’s trademark at the time of registration of the disputed domain name and the Complainant contends that the use of the disputed domain name to impersonate the Complainant and attract, f or commercial gain, Internet users to the Respondent’s website, creating a likelihood of conf usion with the Complainant’s trademark as to the source, sponsorship, af f iliation, or endorsement of the Respondent’s website, qualif ies as bad f aith registration and use. B. Respondent The Respondent has made no formal reply to the Complainant’s contentions. However, as noted above, the Respondent sent the f ollowing inf ormal email communications to the Center: “hey what is this about ?” (October 30, 2023); “what are you talking about? hell i have no idea” (November 24, 2023). A respondent is not obliged to participate in a proceeding under the Policy, but if it f ails to submit a f ormal response, reasonable facts asserted by a complainant may be taken as true, and appropriate inf erences, in accordance with paragraph 14(b) of the Rules, may be drawn. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0 ”), section 4.3. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisf y in order to succeed: (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 respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad f aith. A. Identical or Confusingly Similar It is well accepted that the f irst element f unctions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. WIPO Overview 3.0 , section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark f or the purposes of the Policy. WIPO Overview 3.0 , section 1.2.1. The Panel f inds the entirety of the mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0 , section 1.7. While the addition of other terms, here “hearings”, may bear on assessment of the second and third elements, the Panel f inds the addition of such terms does not prevent a f inding of conf using similarity between the disputed domain name and the mark f or the purposes of the Policy. WIPO Overview 3.0 , section 1.8. page 4 It is also well accepted that a generic Top-Level Domain, in this case “.com”, is typically ignored when assessing the similarity between a trademark and a domain name. WIPO Overview 3.0 , section 1.11.1. Based on the available record, the Panel f inds the f irst element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, 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 f orward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent f ails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0 , section 2.1. Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant’s prima facie showing and has not come f orward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. Panels have held that the use of a domain name f or illegal activity, here impersonation/passing of f , can never conf er rights or legitimate interests on a respondent. WIPO Overview 3.0 , section 2.13.1. Moreover, the Panel f inds that the composition of the disputed domain name carries a risk of implied af f iliation as it ef f ectively impersonates or suggests sponsorship or endorsement by the Complainant. WIPO Overview 3.0 , section 2.5.1. Based on the available record, the Panel f inds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that f or the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad f aith. In the present case, regarding the registration in bad faith of the disputed domain name, the reputation of the Complainant’s trademark SENNHEISER in the audio technology field is clearly established, and the Panel f inds that the Respondent must have known of the Complainant, and deliberately registered the disputed domain name in bad faith, especially because in the website at the disputed domain name the Complainant’s trademark and logo were reproduced, pretending to be a Complainant’s of f icial website. The Panel f urther notes that the disputed domain name was also being used in bad f aith since the Respondent was trying to attract Internet users to its website by creating likelihood of conf usion with the Complainant’s trademark as to the disputed domain name’s source, sponsorship, affiliation or endorsement, an activity clearly detrimental to the Complainant’s business. Panels have held that the use of a domain name f or illegal activity, here impersonation/passing of f , constitutes bad faith. WIPO Overview 3.0 , section 3.4. Having reviewed the record, the Panel f inds the Respondent’s registration and use of the disputed domain name constitutes bad f aith under the Policy. page 5 The above suggests to the Panel that the Respondent intentionally registered and was using the disputed domain name in order both to disrupt the Complainant’s business, and to attract Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy. As regards the current use of the disputed domain name, directing to and inactive website, Panels have f ound that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a f inding of bad faith under the doctrine of passive holding. Having reviewed the record, the Panel f inds the non-use of the disputed domain name does not prevent a f inding of bad f aith in the circumstances of this proceeding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (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 or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good f aith use to which the domain name may be put. WIPO Overview 3.0 , section 3.3. Having reviewed the record, the Panel notes the distinctiveness and reputation of the Complainant’s trademark, the composition of the disputed domain name, and the failure of the Respondent to submit a f ormal response and finds that in the circumstances of this case the passive holding of the disputed domain name does not prevent a f inding of bad f aith under the Policy. Furthermore, the Panel considers that the nature of the inherently misleading disputed domain name, which includes the Complainant’s trademark in its entirety with the mere addition of the term “hearings”, namely ref erring to the Complainant’s field of activity, further supports a f inding of bad f aith. WIPO Overview 3.0 , section 3.2.1. Based on the available record, the Panel f inds the third element of the Policy has been established. 7. Decision For the f oregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <sennheiser-hearings.com>, be transf erred to the Complainant. /Edoardo Fano/ Edoardo Fano Sole Panelist Date: December 12, 2023

Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.