In accordance with paragraph 4(a) of the Policy, to obtain transfer of a domain name, the Complainant must prove the following three elements: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in the domain name; and (iii) the Respondent has registered the domain name and is using it in bad faith.
Under paragraph 15(a) of the Rules, “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.
As to the first element, each of the disputed domain names incorporates the Complainant's FABER trademark, adding the descriptive words "service centre" or "service center", which do nothing to distinguish the disputed domain names from the Complainant's mark. The gTLD ".com" may be disregarded. Accordingly, both disputed domain names are confusingly similar to the Complainant's FABER trademark.
As to the second element, the Complainant contends that neither of the Respondents has rights or legitimate interests in the disputed domain names because, inter alia, neither Respondent is commonly known by the disputed domain names and neither has shown that the disputed domain names will be used in connection with a bona fide offering of goods or services. The Complainant says the intention of the disputed domain names is to take advantage of an association with the Complainant’s business, since any visitor to the websites would have the impression that those are official sites of the Complainant. Neither Respondent is an authorized repair centre yet the use of the trademark FABER in the disputed domain names and in the websites creates the impression that there is some official or authorized link with the Complainant in relation to repairs and services, especially in the Indian market.
The Panel finds that the FABER mark is distinctive and widely known. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the disputed domain names on the part of the Respondents. The evidentiary burden therefore shifts to the Respondents to show that they do have rights or legitimate interests in the disputed domain names. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondents have made no attempt to do so.
In the circumstances of this case, the Panel finds that the Respondents have no rights or legitimate interests in respect of the disputed domain names.
As to the third element, the Complainant invokes, inter alia, sub-paragraph 4(b)(iv) of the Policy, which sets out illustrative circumstances, which, though not exclusive, shall be evidence of both bad faith registration and bad faith use for purposes of paragraph 4(a)(iii) of the Policy, namely:
"(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location."
The Panel finds that the Respondents must have been aware of the Complainant's FABER mark when they registered the disputed domain names and that the disputed domain names are being used in the manner described in the Policy, sub-paragraph 4(b)(iv) of the Policy. Accordingly, the Panel finds that the disputed domain names have been registered and are being used in bad faith.
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