According to paragraph 4 (c) of the Policy, the following circumstances shall demonstrate that a respondent has rights or legitimate interests to a domain name:
i) Before any notice of the dispute, the respondent has used, or made demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods or services, or
ii) the respondent has been commonly known by the domain name, even if he/she has acquired no trademark or service mark rights, or
iii) the respondent is making a legitimate noncommercial fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
According to the Complainant, the Respondent is not affiliated with, authorized by or otherwise related to the Complainant. The Complainant also contends that the Respondent is not commonly known by the domain name at issue since its Whois information is incorrect. Therefore, the Complainant has demonstrated that the Respondent has no rights or legitimate interest in respect of the domain name at issue.
The Respondent alleges a legitimate noncommercial use of the domain name without intent for commercial gain. Respondent has used the name in connection with a link farm parking page advertising the services of third parties in competition with Complainant. It is well-established that operating a link farm parking page using a distinctive trademark in a domain name, and providing connection to goods and/or services competitive with the trademark owner, does not establish rights or legitimate interests. See, e.g., VIVO S.A. and PORTELCOM PARTICIPAÇÕES S.A. v. Domains By Proxy - NA Proxy Account Niche Domain Proxy Manager, WIPO Case No. D2010-0925: Overstock.com, Inc. v. Metro Media, WIPO Case No. DME2009-0001.
Respondent’s use of the disputed domain name in connection with a farm parking page is plainly commercial, and does not constitute "fair use" of Complainant's trademark. Respondent is using Complainant's trademark to attract Internet users to a website offering goods and services competitive with those of a business operated by Complainant. This does not provide a fair use justification for use of Complainant's trademark in the disputed domain name. Respondent’s predominant purpose in using Complainant's trademark in the disputed domain name was and is to confuse Internet users into visiting its website by suggesting sponsorship or endorsement by Complainant.
The Panel finds that this cannot be seen as legitimate noncommercial use. Indeed, Respondent has failed to rebut Complainant's prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the Domain Name (within the meaning of paragraph 4(a)(ii)of the Policy).
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