Paragraph 15 of the UDRP Rules states that the Panel shall decide a 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 deemed applicable.
In the case of default by a Party, paragraph 14 states that if a Party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under the Rules, the Panel shall draw such inferences therefrom as appropriate.
In this case the Respondent has not submitted any Response and consequently has not contested any of the contentions made by the Complainant. The Panel is therefore obliged to make its decision on the basis of the factual statements contained in the Complaint and the documents made available by the Complainant to support its contentions.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following for a panel to order a transfer of the domain name at issue:
(i) the domain name registered by the respondent is identical or confusingly similar to a trade mark or service mark in which Complainant has rights; and
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Taking each of these issues in turn, the Panel decides as follows:
A. Identical or Confusingly Similar
Based on the evidence put forward by the Complainant, the Panel finds that the Complainant has shown trademark rights in the ARCELORMITTAL sign.
The Panel notes that the disputed domain name incorporates the Complainant's ARCELORMITTAL trademark in its entirety. Moreover, the addition of the descriptive term "show" is not sufficient to diminish or suppress the likelihood of confusion, such as priorly explained by the the Panel in SGS Société Générale de Surveillance S.A. v. Inspectorate Korea WIPO Case No. D2000-0025 in which the Panel has considered that the sole adjunction of a descriptive term within a domain name is not sufficient to exclude any risk of confusion with the Complainant’s rights.
On the basis of these considerations, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)).
Paragraph 4(c) of the Policy sets out various ways in which a respondent may demonstrate rights or legitimate interests in the domain name at issue, as follows:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable 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; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(iii) you are 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 trade mark or service mark at issue."
The Panel has considered the evidence put forward by the Complainant and is of the view that the Complainant has presented a prima facie showing of the Respondent's lack of rights or legitimate interests in the disputed domain name. As a result of its default, the Respondent has failed to rebut that showing, even when given a further opportunity to explain its actions by the Panel as a result of the Panel's Procedural Order.
Considering that the disputed domain name is resolving to a a website that displays information in relation with the Complainant, the Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy.
In light of this fact the Respondent cannot be said to be making a legitimate non-commercial or fair use of the domain name within the meaning of paragraph 4(c)(iii) either.
Finally, no evidence has been supplied that the Respondent is commonly known by the disputed domain name, as per paragraph 4(c)(ii).
Given the findings listed above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
The third element that the Complainant must prove on the balance of probabilities states that the disputed domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
The domain name is used to display information that are in direct competition with the goods and services offered by the Complainant under its ARCELORMITTAL trademark. The Respondents use of the disputed domain does not constitute a bona fide offering of goods and services under paragraph 4(c)(iii) of the Policy.
The Respondent is using the distinctive trademark of the Complainant as part of the disputed domain name, and diplay information using the Complainant's ARCELORMITTAL trademark logo. The Panel therefore finds that the Complainant has shown to the satisfaction of the Panel, that the Respondent must have been aware of the trademark belonging to the Respondent when registering the disputed domain name. The Respondent has therefore registered the disputed domain name in bad faith.
The Respondent is also using the disputed domain name in bad faith pursuant to paragraph 4(b)(iv) of the Policy because the Respondent is commercially gaining from the likelihood of confusion between the Complainant's mark and the products and services advertised on the disputed domain name.
For all of the reasons set out above, the Panel determines that the disputed domain name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
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