I. CONFUSING SIMILARITY
The Panel is satisfied that the disputed domain name is confusingly similar to the Complainant's trademark. The disputed domain name consists of the second level domain name "boheringer-ingelheim", which is practically identical to the Complainant's trademark BOEHRINGER-INGELHEIM, followed by the gTLD ".com". The only differences between the disputed domain name and the Complainant's trademark lie in the fact that the order of the letters "h" and "e" in the two signs is reversed, and in the addition of the gTLD ".com". The latter, is a mere technical requirement and therefore has not impact on the assessment of confusing similarity under paragraph 4(a)(i) of the Policy. With respect to the reversed order of the letters "h" and "e", this is minimal difference, that is hardly perceivable, especially by the non-German public, but also in general. Therefore, Internet users searching for the Complainant would most likely be confused when encountering the disputed domain name.
For the reasons mentioned above, the Panel finds that the Complainant has successfully proved the fulfilment of the first requirement set forth by paragraph 4(a)(i) of the Policy.
II. THE RESPONDENT’S LACK OF RIGHTS OR LEGITIMATE INTERESTS IN THE DISPUTED DOMAIN NAME
While the overall burden of proof under the UDRP proceedings rests on the Complainant, it is generally recognized that in order to prove the respondent’s lack of rights or legitimate interest in a domain name it is sufficient for the complainant to make out a prima facie case in order to shift the burden of proof to the respondent. This is so because proving a third party’s negative fact, such as the respondent’s lack of rights or legitimate interest, would otherwise result in an almost impossible task for the complainant.
In the instant case, the Complainant maintains that the Respondent is not known by the disputed domain name and that the Complainant is not linked to the Respondent by any kind of relationship. Furthermore, the Complainant never licensed its trademark to the Respondent, nor granted any authorization to the Respondent to register the disputed domain name. The disputed domain name leads to a parking page containing commercial links, both related and unrelated to the Complainant. This practice cannot amount to a bona fide offering of goods and services, nor to a non-commercial or fair use of the disputed domain name.
According to the Panel, the aforementioned circumstances are sufficient to establish a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. In order to rebut the Complainant's arguments, the Respondent had the possibility to make his own defense. However, the Respondent chose not to file a Response.
In view of the foregoing, the Panel is satisfied that also the second condition under the Policy is met.
III. THE REGISTRATION AND USE OF THE DISPUTED DOMAIN NAME IN BAD FAITH
The Complainant asserts that it is highly unlikely that the Respondent was not aware of the Complainant’s trademark at the time of the registration of the disputed domain name. The Panel agrees with the Complainant's contention. First, because the Complainant's trademark is quite distinctive and unique. Thus, it is practically impossible that the Respondent chose the disputed domain name by chance. Moreover, the disputed domain name is a misspelled version of the Complainant's trademark, which indisputably shows that the Respondent registered the domain name at issue with actual knowledge of the Complainant's trademark.
Prior panels deciding under the Policy have held that actual and constructive knowledge of a complainant's right at the time of registration of a domain name constitutes strong evidence of bad faith. See among many: Accenture Global Services Limited v. Stexpress, Stex Logistics, WIPO Case No. D2015-0899; Research in Motion Limited v. International Domain Names Inc. / Moniker Privacy Services, WIPO Case No. D2008-0780; ArcelorMittal (SA) / Sanchez Juan Carlos, CAC Case No. 102291, etc.
In view of the foregoing, the Panel concludes that the Respondent registered the disputed domain name in bad faith.
As far as use in bad faith is concerned, the Complainant provided evidence of the fact that the disputed domain name leads to a parking page containing sponsored links related and unrelated to the Complainant and its activity. The Respondent is likely to derive some kind of profit from each click that an Internet user makes on one of the displayed links. Therefore, the Respondent is using the disputed domain name to take an undue economic advantage from the distinctive character and reputation of the Complainant's trademark. This kind of use, amounts to use in bad faith. The fact that the sponsored links are "served automatically by a third party", does not render the Respondent's use of the disputed domain name legitimate. As clearly stated in paragraph 3.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), "a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests). Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith".
It is also worth mentioning that the Respondent has been already involved in many other UDRP proceedings for having registered domain names containing third parties' trademarks, which is further demonstration of bad faith.
In view of the foregoing, the Panel finds that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website by creating confusion in the minds of the public as to an association between the website and the Complainant.
Accordingly, the Panel is satisfied that also the third and last requirement under the Policy is met.
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