RIGHTS
Since the domain name and the Complainant’s trademarks are not identical, the key element investigated and considered by the Panel is whether the disputed domain name consisting of a term “AVGCOMRETAIL-AVG.COM” is confusingly similar to the Complainant’s trademarks.
The Panel contends that the disputed domain name and the Complainant’s trademarks are confusingly similar since both fully incorporate a distinctive word element “AVG” that enjoys high level of notoriety at least in relevant business and customer circles. Addition of non-distinctive generic words “RETAIL” and “COM” to it cannot prevent the association in the eyes of internet consumers between the disputed domain name and the Complainant’s trademarks and thus the likelihood of confusion still exists.
For sake of completeness, the Panel asserts that the top-level suffix in the domain name (i.e. the “.com”) must be disregarded under the identity and confusing similarity tests as it is a necessary technical requirement of registration.
Therefore, the Panel has decided that there is identity in this case, it also concludes that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
NO RIGHTS OR LEGITIMATE INTERESTS
The Complainant’s assertions that the Respondent is not commonly known by the disputed domain name and is not affiliated with nor authorised by the Complainant are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent.
The Respondent, in particular, used the disputed domain name (which include Complainant’s Trademarks) in order to present misleading and inaccurate information about Respondent’s services that in a way that was capable of creating a false impression that such services were provided by the Complainant or with his consent.
It also appears that the domain name (through domain name website) has been used for fraudulent phishing purposes.
As a result, the Panel concludes that there is no indication that the domain name was intended to be used in connection with a bona fide offering of goods or services as required by the Policy.
Consequently, the evidentiary burden shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name. However, the Respondent failed to provide any information and evidence that it has relevant rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a) (ii) of the Policy).
BAD FAITH
As described above, the Complainant has proven that the Respondent has used (at least for some time) the disputed domain name for promotion and offer offering services (i) likely with intention to free-ride on reputation and goodwill of such trademarks and Complainant’s business and , even more importantly, (ii) in a manner that was detrimental both to the customers as well the Complainant and his business since information provided about such services and Complainant's Product were false and misleading.
Also disputed domain name website has been used as a phishing scheme to mimic the Complainant’s site, while intercepting Product activation keys or other information which visitors enter unsuspectingly.
Such unfair use of the disputed domain name cannot be considered as a use thereof in good faith and in compliance with fair business practices.
For the reasons described above, since (i) there is only a remote chance that the Respondent has registered the disputed domain name just by a chance and without having a knowledge about the existence of the Complainant’s rights and business (ii) the use of the dispute domain name is not compliant with fair business practices, the Panel contends, on the balance of probabilities, that the disputed domain name has been registered and is being used by the Respondent in bad faith.
Thus, the Panel has taken a view that the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy.
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