Discussion and findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall 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.”
Paragraph 4(a) of the Policy lists three elements that Complainant must prove to merit a finding that the domain name registered by the Respondent be transferred to the Complainant:
1) the domain name is identical or confusingly similar to a trademark or service mark (“mark”) in which the Complainant has rights; and
2) the 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 disputed domain name contains entirely the Hapag Lloyd trademark which is combined with the generic term "safe". It is well established that to combine a third party's trademark with generic terms is not sufficient to avoid confusion.
Therefore this Panel, having verified Complainant's legitimization and rights to the EU trademark No. EU002590479 for the word "Hapag-Lloyd”, finds that Complainant has established rights to a trademark that is confusingly similar to the disputed domain name.
B. Rights or Legitimate Interests
Complainant must show that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Respondent in a UDRP proceeding does not assume the burden of proof, but may establish a right or legitimate interest in a disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy:
a) that before any notice to the respondent of the dispute, he or she used or made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
b) that the respondent is commonly known by the domain name, even if he or she has not acquired any trademark rights; or
c) that the respondent is making a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
Respondent has no connection or affiliation with Complainant, which has not licensed or otherwise authorized Respondent to use or apply for any domain name incorporating Complainant’s trademark.
Respondent does not appear to make any legitimate use of the domain name for non-commercial activities. On the contrary, it appears that Respondent used the disputed domain name to misdirect consumers into believing that they have arrived at a site which is owned by or associated with Hapag-Lloyd.
The Panel has particularly noticed that the Domain Name and the related site are used to defraud users into purchasing products that are never delivered. Such a use cannot be regarded as a legitimate use pursuant to the Policy.
Respondent does not appear to have been commonly known by the domain name.
Respondent has not shown any facts or elements to justify prior rights and/or legitimate interests in the disputed domain name. Indeed, the Respondent has not filed any administratively compliant response.
The circumstances of the case, the assertions made by the Complainant and the documents available, convince the Panel that the Respondent for the purposes of this proceeding has no legitimate rights to the disputed domain name.
C. Registered and Used in Bad Faith
For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s web site or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s web site or location or of a product or service on the holder’s web site or location.
Accordingly, for a Complainant to succeed, the Panel must be satisfied that the domain name has been registered and is being used in bad faith.
The Complainant has to the satisfaction of the Panel shown that Respondent registered and used the disputed domain name in bad faith.
Indeed it appears that the Respondent intentionally attempted to attract Internet users to his own website misleading them into believing it is operated, authorized and/or connected to the Complainant. By so deflecting Internet users, Respondent has shown bad faith registration and use of the disputed domain name that clearly falls within the example given in paragraph 4(b)(iv) of the Policy.
The contents of the above website are moreover clear evidence that the Respondent was aware of Complainant's rights and activity when he registered the disputed domain name and corresponding website. The Panel particularly notices the Respondent has used statement such as “Hapag Llloyd is the safest way to buy and sell online”
In view of the above, the Panel finds that there are good reasons to believe that Respondent had actual knowledge of Complainant’s trademark when he registered the disputed domain name. The Panel, in accordance with previous decisions issued under the UDRP, is of the opinion that actual knowledge of Complainant’s trademark and activities at the time of the registration of the disputed domain name may be considered an inference of bad faith (See Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226 and Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil WIPO Case No. D2000-1409. “It is inconceivable that the Respondent could make any active use of the disputed domain name without creating a false impression of association with the Complainant. The Respondent was not authorized by the Complainant to use neither its mark nor the disputed domain name”.
In similar circumstances a finding of bad faith was held by the Panel in ADR No.100645 Hapag-Lloyd v.Luke King
Considering the foregoing, the Panel concludes that Respondent registered and is using the disputed domain name in bad faith and that the requirements of paragraph 4(a)(iii) of the Policy are satisfied.
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