PARTIES' CONTENTIONS:
COMPLAINANT:
Identical or confusingly similar:
The Complainant contends that the disputed domain name is confusingly similar to its MINIMAL WINDOWS trademarks and its domain names. The disputed domain name consists exclusively of the Complainant’s registered MINIMAL WINDOWS trademark, written in a reversed way. MINIMAL WINDOWS does not have a meaning per se in English and has, therefore, an increased distinctiveness. It is well established that a domain name that wholly incorporates a Complainant’s registered trademark is sufficient to establish confusing similarity for purposes of the UDRP, according, for instance, to the WIPO Case No. D2003-0888, Dr. Ing. h.c. F. Porsche AG v. V.T. on <porsche-autoparts.com>.
Rights or legitimate interest:
The Complainant states that the Respondent is not affiliated with him, nor authorized in any way to register and use the disputed domain name. Neither license nor authorization has been granted to the Respondent. The domain name points to a webpage that presents the products and services of a competitor of the Complainant, who is domiciled in London (UK) and who is not the Respondent. Such use is obviously not legitimate and is not a non-commercial or fair use. The Respondent has no rights or legitimate interest in the disputed domain name, and has registered and used the domain name only in order to create a likelihood of confusion with the Complainant’s MINIMAL WINDOWS trademarks.
Bad faith:
The Complainant states that the whole incorporation of its trademark in a reversed order is clear evidence of the bad faith of the Respondent. Given the distinctiveness of the Complainant’s trademark and reputation in the field of slim framed sliding doors and windows, in which the Respondent also seems to be active as it can be seen from its own website, it is reasonable to infer that the Respondent has registered the domain name with full knowledge of the Complainant’s MINIMAL WINDOWS trademarks. It also states that the use of the domain name in connection with a website which resolves to a competitor website related to the Complainant’s activity is evidence of use in bad faith. The Respondent did to stop using the disputed domain name after he received the cease and desist letter that was sent to him on August 2, 2016. It means that he went on using the disputed domain name in full knowledge of the prior trademarks rights of the Complainant.
By registering and using the domain name, it seems clear that the Respondent has maintained the domain name in order to prevent the Complainant to register its trademark as a domain name, and to intentionally attract Internet users for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark.
RESPONDENT:
Identical or confusingly similar:
The Respondent contends that the disputed domain name is not identical to the Complainant’s registered trademark neither confusingly similar. The Complainant uses its trademark with a combination view and there is no possibility of confusion with the disputed domain name. The disputed domain name <windowsminimal.com> is a short, without any meaning, fourteen letter «.com » domain name that could be used for a variety of purposes, which is why Respondent registered it and does not take advantage of the Complainant’s MINIMAL WINDOWS trademarks.
Rights or legitimate interest:
The Respondent contends that there is nothing illegitimate about investing in domain names and that Complainant has failed to put forward any evidence that Respondent is seeking to capitalize on Complainant’s « minimal windows » trademarks.
Bad faith:
The Respondent argues that it did not register the disputed domain name in bad faith because the Complainant appears to have never used its trademarks in the Cyprus Market, and it categorically denies it had any knowledge of the Complainant or its MINIMAL WINDOWS trademarks when he acquired the domain name. The Respondent claims he has never used the disputed domain name to target Complainant’s products. He explains that it has used “windowsminimal slimline frame for 8 years now, since 2010, and it has finished projects over 3 millions euros and there is still projects over 2 millions euros”.
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