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and Mediation Center
HUK-COBURG haftpflicht-Unterstьtzungs-Kasse kraftfahrender Beamter Deutschlands A.G. v. DOMIBOT (HUK-COBURG-COM-DOM)
Case No. D2006-0439
1. The Parties
The Complainant is HUK-COBURG haftpflicht-Unterstьtzungs-Kasse kraftfahrender Beamter Deutschlands A.G., Coburg, Germany, represented by Linklaters Oppenhoff & Rдdler, Germany.
The Respondent is DOMIBOT (HUK-COBURG-COM-DOM), Colinas Monte, Caracas, Venezuela.
2. The Domain Name and Registrar
The disputed domain name <hukcoburg.com> is registered with BelgiumDomains
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2006. On April 10, 2006, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name at issue. On April 11, 2006, BelgiumDomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the domain name <hukcoburg.com> and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 18, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 8, 2006. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on May 9, 2006.
The Center appointed David Levin Q.C. as the sole
panelist in this matter on May 10, 2006. 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 the sole legal holder of:
(a) German trademark registration No. 1 025 922 “HUK-COBURG” registered with priority of December 11, 1980, for “insurance”; and
(b) Community trademark registration No. 144 907 “HUK-COBURG” registered with priority of April 1, 1996, for “insurance, in particular third party, legal protection, life and health insurance; financial affairs, in particular granting and arranging of loans and mortgages, also within the framework of a building society”.
The Complainant and its affiliate HUK-COBURG A.G. are the registered owner
of the domain names <huk-coburg.de>, <huk-coburg.biz>, <huk-coburg.info>
5. Parties’ Contentions
The Complainant argues that it is a well-known insurance company in Germany, offering various kinds of insurances, also online. According to a survey of 2005, the Complainant enjoys a spontaneous brand awareness in Germany of 31.2% and a supported brand awareness of 94.6%. Only two insurance companies in Germany can show a higher supported brand awareness. 18.8% of German households have at least one insurance contract with the Complainant which puts it second in a league table with insurance competitors in Germany. It is the leading private motor vehicle liability insurance company in Germany. Overall it has in excess of 7.5 million clients.
The Complainant submits that, in line with paragraph 4(a) of the Policy:
(a) The domain name <hukcoburg.com> is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) Respondent has no rights or legitimate interests in respect of the domain name <hukcoburg.com>; and
(c) The domain name <hukcoburg.com> was registered and is being used in bad faith.
In support of (a) above it contends that the suffix to and the hyphen in a registered domain name should be ignored when considering the issue of whether the domain name is identical to a trademark or service mark. In any event, notwithstanding the omission of the hyphen in the challenged domain name, the name is confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant refers to its high profile, particularly in Germany, and its considerable commercial presence on the internet, which reinforces the contention that any use of the domain name <hukcoburg.com> by the Respondent, whether as a website or for correspondence, sets up a false assumption with other internet users that the Respondent is, or is connected or affiliated with the Complainant and thereby causes confusion to such users.
In support of (b) above it provides evidence that the Respondent has not been using either the domain name <hukcoburg.com> or any similar names in connection with a bona fide offering of goods and services in good faith nor that the Respondent was at any time known under the domain name <hukcoburg.com>. The Respondent does not own any rights or claim any legitimate interest in the name or mark “HUKCOBURG”.
In support of (c) above it contends that the Respondent did not use the domain name for any legitimate, non-commercial or equitable purpose. Further it relies on the fact that the Respondent attempted to hide its identity by use of an email address protected or disguised under an Identity shield address. When notice of the concerns of the Complainant was sent to the Respondent the domain name was transferred to a new Registrar. No explanation for this conduct has been provided. The Complainant contends that the domain name <hukcoburg.com> is used to impair and exploit the Complainant’s trademark reputation/distinctiveness; a printout of the website “www.hukcoburg.com” from April 5, 2006, shows that many links to competitors of the Complainant were provided on the website.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements is satisfied:
(1) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (see below, section A);
(2) The Respondent has no rights or legitimate interests in respect of the domain name (see below, section B); and
(3) The domain name has been registered and is being used in bad faith (see below, section C).
Paragraph 4(a) of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant. Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
A. Identical or Confusingly Similar
The Panel accepts that the inclusion of a gTLD such
as “.com” is immaterial when determining identity or similarity
between domain names and trademarks: see, for example, Ticketmaster Corporation
v. Discover Net, Inc., WIPO
Case No. D2001-0252. Thus evaluation of whether the domain name is identical
or confusingly similar requires a comparison between the word ‘hukcoburg’
and the Complainant’s trademark, which includes a hyphen. Whilst it may
be appropriate to take the distinction of the presence or absence of a hyphen
in the domain name into account when evaluating whether the domain name is identical
to the Complainant’s mark, the Panel finds that the omission of the hyphen
does nothing to avoid the confusing similarity between the domain name and the
trademark of the Complainant: see Deutsche Telekom AG v. Dexcom
Holdings B.V., WIPO Case No. DTV2006-0001.
See also Chernow Communications, Inc. v. Jonathan D. Kimball WIPO
Case No. D2000-0119 and the cases therein referred to.
B. Rights or Legitimate Interests
The Respondent has not sought to show the Panel that it has any rights or legitimate interests in the domain name <hukcoburg.com>. The evidence of the Complainant is that it has never granted any rights to the Respondent. The Panel under paragraph 14(b) of the Rules is entitled, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate. In the circumstances of this case the Panel concludes that the Complainant has established the absence of any right or legitimate interest to permit the use of the Complainant’s trademarks in the domain name.
C. Registered and Used in Bad Faith
The registered domain name is almost exactly the same as the registered trademarks
of a high profile insurance company which undertakes considerable internet commerce.
In such circumstances it must be inferred that the Respondent did not register
the name by mere chance and it has failed to dispute any of the allegations
raised against it by the Complainant. This leads to the conclusion that the
registration was undertaken in bad faith: Axel Springer AG v.
Jack Tubul, WIPO Case No. D2005-0554.
Furthermore the conduct of the Respondent in setting up registration under
the protection of the Whois Identity Shield and then upon notification of the
allegation of improper or unauthorised use of the domain name contrary to legitimate
rights of the Complainant the transfer to a new Registrar is evidence of bad
faith use: see Pologne 4 S.P.A. v Carrent Bank-Promotuls, SA. Inc./
Esidro Fentis A/K/A Alex Bars, WIPO Case
Similarly, entering into activities which have no other purpose than to attempt
to hide the identity of the registered owner, as the Panel finds occurred in
the present case, reinforce the bad faith use conclusion: British Sky Broadcasting
Group plc v. Mr. Pablo Merino and Sky Services S.A, WIPO
Case No. D2004-0131.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <hukcoburg.com> be transferred to the Complainant.
David Levin Q.C.
Dated: May 17, 2006