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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

SAP AG v. Allen Davis

Case No. D2006-1011

 

1. The Parties

The Complainant is SAP AG, Walldorf, Germany, represented by Akin, Gump, Strauss, Hauer & Feld, United States of America.

The Respondent is Allen Davis, Business Integration Consulting, LLC, Spartanburg, South Carolina, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <mysapnetweaver.com> is registered with Go Daddy Software.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 8, 2006. On August 9, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On August 10, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 22, 2006. 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”), 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 August 23, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 12, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 13, 2006.

The Center appointed Sandra J. Franklin as the Sole Panelist in this matter on September 25, 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

Complainant SAP AG is a German company, which began operations in 1972, and is now one of the largest software providers in the world. Complainant has at least 15 U.S. Trademark Registrations for SAP, alone and in combination, including registrations for SAP NETWEAVER, MYSAP, and MYSAP.COM. SAP began offering its services under its marks in the U.S. in 1993, 13 years prior to Respondent’s registration of <mysapnetweaver.com>.

 

5. Parties’ Contentions

A. Complainant makes the following assertions:

(1) Respondent’s <mysapnetweaver.com> domain name is confusingly similar to Complainant’s MYSAP and SAP NETWEAVER marks.

(2) Respondent does not have any rights or legitimate interests in the <mysapnetweaver.com> domain name.

(3) Respondent registered and used the <mysapnetweaver.com> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009 (WIPO February 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that Complainant’s registrations with the USPTO sufficiently establish Complainant’s rights in the MYSAP and SAP NETWEAVER marks. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum February 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant’s rights in the mark.”).

The Panel finds that Respondent’s <mysapnetweaver.com> domain name is confusingly similar to Complainant’s marks, as the disputed domain name simply combines the two marks in their entirety. In Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, WIPO Case No. D2001-0026 (WIPO March 23, 2001), the panel found confusing similarity where the domain name in dispute contained the identical mark of the complainant combined with a generic word or term. In this case, the Panel finds that the combination of two of Complainant’s marks is even more likely to cause confusion.

The Panel finds that paragraph 4(a)(i) of the Policy has been satisfied.

B. Rights or Legitimate Interests

Complainant asserts that Respondent has no rights or legitimate interests in the <mysapnetweaver.com> domain name. Once Complainant demonstrates a prima facie case, the burden of proof shifts, and Respondent must prove that it has rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO August 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum October 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under paragraph 4(a)(ii) of the Policy.”)

Respondent has not presented any evidence of rights or legitimate interests. Respondent’s WHOIS information does not suggest that Respondent is commonly known by the <mysapnetweaver.com> domain name. In Compagnie de Saint Gobain v. Com-Union Corp., WIPO Case No. D2000-0020 (WIPO March 14, 2000), the panel found no rights or legitimate interests where the respondent was not commonly known by the mark and had never applied for a license or permission from the complainant to use the trademarked name. The Panel therefore finds that Respondent has no rights or legitimate rights in the <mysapnetweaver.com> domain name.

The Panel finds that paragraph 4(a)(ii) of the Policyhas been satisfied.

C. Registered and Used in Bad Faith

Complainant states that Respondent uses exact copies of its trademarks on the website, attempting to falsely affiliate himself with Complainant and purporting to offer Complainant’s products. The Panel finds that this use of a confusingly similar domain name to mislead Internet users constitutes disruption and evidences bad faith pursuant to paragraph 4(b)(iii) and (vi) of the Policy. See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum November 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant’s mark to divert Internet users to a competitor’s website. It is a reasonable inference that Respondent’s purpose of registration and use was to either disrupt or create confusion for Complainant’s business in bad faith pursuant to paragraph 4(b)(iii) [and] (iv) of the Policy.”); see also Nokia Corp. v. Private, WIPO Case No. D2000-1271, (WIPO November 3, 2000) (finding bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark).

The Panel finds that paragraph 4(a)(iii) of the Policy has been satisfied.

 

7. Decision

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 <mysapnetweaver.com> be transferred to the Complainant.

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Sandra J. Franklin
Sole Panelist

Dated: October 4, 2006