The Complainant's contentions can be summarized as follows.
1. Identity or confusing similarity (Policy 4(a)(i); Rules 3(b)(ix)(1))
The disputed domain name is confusingly similar to the Complainant’s trademarks, because it wholly incorporates the dominant part of these marks, namely the word “METZELER”. The addition of the generic terms “motorcycle”, “tire” and “store”, do not affect the attractive power of the dominant part of the Complainant’s trademarks, and are insufficient to exclude the confusingly similarity between the disputed domain name and the Complainant’s marks. As the Complainant is involved in, and well-known for, its business of motorcycle tire manufacturing and sale, the addition of these generic terms increases the likelihood of confusion between the disputed domain name on the one side, and the Complainant's trademark on the other side.
2. Lack of rights or legitimate interests (Policy 4(a)(ii); Rules 3(b)(ix)(2))
The Complainant never authorised, either expressly or implicitly, the Respondent to use the Complainant’s trademarks in, or as part of, any domain name. Furthermore, the Complainant has no association, affiliation and/or dealings of any nature whatsoever with the Respondent, and does not endorse nor promotes his services.
There is no indication that the Respondent has legitimate interests in the trademark METZELER; according to searches conducted among Italian, EU, US and international trademarks, the Respondent does not appear to own any METZELER trademark, or any trademark including this element.
The disputed domain name resolves to a website, which is a blank page. Hence, there is no evidence that the Respondent’s use of the disputed domain name is in connection with a bona fide offering of goods or services or amounts to a legitimate noncommercial or fair use, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
Finally, there is no evidence that the Respondent has been commonly known by the disputed domain name.
For all these reasons, the Complainant believes that it has established a prima facie case of the Respondent’s lack of rights or legitimate interests in the disputed domain name, and that the burden of proof to show that it has rights or legitimate interests in the disputed domain name now shifts to the Respondent.
3) Registration and use of the disputed domain name in bad faith (Policy 4(a)(iii); Rules 3(b)(ix)(3))
As far as registration in bad faith is concerned, the Complainant points out that the disputed domain name consists of the dominant component of its well-known trademarks, i.e. the word “METZELER”, and of the generic terms “motorcycle”, “tire” and “store”, reflecting the Complainant’s business. Taking into account the vast and widespread advertising campaigns carried out by the Complainant for the promotion of its trademarks, it is unlikely that the registration of the disputed domain name occurred by mere chance and not because of the Respondent’s full awareness of the Complainant’s trademarks, and intent to exploit their reputation and goodwill.
As far as use in bad faith is concerned, the Complainant points out that the disputed domain name resolves to an inactive website and that it is well-founded that registration of a trademark, which enjoys strong reputation, coupled with the passive use of the disputed domain name are sufficient to conclude that the use of the disputed domain name is in bad faith under para. 4(a)(iii) of the Policy.
In light of the foregoing, according to the Complainant, the registration of the disputed domain name has either been carried out with the purpose of:
- selling, renting, or otherwise transferring the disputed domain name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
- attracting, for commercial gain, Internet users to the web site or other on-line location, by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation, or endorsement of the web site or location or of a product or service on the web site or location.
NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
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