In accordance with paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name the Complainant must prove the following:
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
In light of the Respondent’s default, the Panel may treat as uncontested the Complainant’s factual assertions. The Panel will now review each of these elements.
A. Identical or Confusingly Similar
The Complainant, in relation to the trademark rights, has established through the evidence on record its trademark “BOHERINGER INGELHEIM”, since 1959. Additionally, the Complainant provided evidence showing the mark has achieved recognition through its use.
Turning now to analyzing the confusingly similarity of the disputed domain name and the Complainant’s trademarks, the Panel notes that the disputed domain name incorporates the entirety of the trademark, namely “BOHERINGER INGELHEIM”, with the addition of a hyphen between the words, which is inconsequential to this analysis, and a typographical error, consisting of the letter “L” instead of the first letter “i” in “INGELHEIM”. These differences are not sufficient to negate the confusing similarity between the disputed domain names and the Complainant’s trademark and the Panel thus finds the disputed domain name falls within the prototypical example of typosquatting as per section 1.9 of WIPO 3.0 Overview.
The Panel therefore holds that the Complaint fulfils the first condition set under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant states that contents that the Respondent is not affiliated with the Complainant nor authorized by the Complainant in any way. The Complainant also contends that neither license nor authorization has been granted to the Respondent to make any use of the Complainant’s trademark. Additionally, the Complainant asserts that it does not carry out any activity for, nor has any business links with the Respondent. In the view of the Panel, these assertions are sufficient to establish a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name (see 2.1 of WIPO 3.0 Overview).
Given that there is no available evidence on record that would otherwise allow the Panel to find any rights or legitimate interests for the Respondent in the disputed domain name and the fact that the Respondent failed to provide any evidence to refute the Complainant’s prima facie showing under the second element, the Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent in failing to reply to the Complainant’s contentions has not rebutted such prima facie case.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and so the Complainant has satisfied the second element of the Policy.
C. Registered and Used in Bad Faith
The Panel finds, as per the evidence on record, that the Respondent was more than likely aware of the Complainant and targeted the Complainant’s trademarks when registering the disputed domain name. The Respondent registered the disputed domain name incorporating the entirety of the trademark, with a slight change attributed to the commonly known practice of typosquatting, for commercial gain – benefiting from the likelihood of confusion. This leaves the Panel with no other option than to conclude that the registration and use of the disputed domain name has been in bad faith, as it embodies the breadth of the conducts contained in the indicative list under paragraph 4(b)(iv) of the Policy.
Accordingly, the Panel finds that the Complainant has satisfied the last element required under paragraph 4(a)(iii) of the Policy.
D. Decision
For the aforestated reasons and in accordance with the provisions contained under Paragraph 4 (a) of the Policy and Paragraph 15 of the Rules, the Panel orders the transfer of the disputed domain name to the Complainant.
|