Complainant shall make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy 4(a)(ii), for the burden to then shift to Respondent. This standard and burden of proof have been established through continuous case law, see LESAFFRE ET COMPAGNIE v. Tims Dozman, Case n° 102430 (CAC May 2, 2019) “The Complainant is required to make out a prima facie case that the Respondent lacks rights or legitimate interests. Once such prima facie case is made, the Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name.”.
Complainant asserts that, based on the available WhoIs information, Respondent is not commonly known under the disputed domain name. Previous panels have relied on such finding to conclude that Respondent lacks rights or legitimate interests in the disputed domain name in this situation: “The Complainant contends that no evidence suggests that the Respondent has been known in any way by the disputed domain name or by the distinctive part “AVAST”. (…) On the basis of preponderance of evidence, and in the absence of any evidence to the contrary or any administratively compliant response being put forward by the Respondent, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name within the meaning of paragraph 4(a)(ii) of the Policy.” (Avast Software s. r. o. v. Milen Radumilo, Case n° 102384 (CAC April 25, 2019).
Complainant further argues that Respondent has never been allowed by Complainant to use Complainant’s trademark MERIAL, nor apply for registration of the disputed domain name. Complainant adds that Respondent does not carry out any activity for, nor has any business with the Respondent.
Complainant further argues that the disputed domain name resolves to a parking page with commercial links related to the Complainant’s activities. Frequently, Panels have found that such passive holding of a domain name redirecting consumers to a parking page displaying commercial links to other websites in the same field of activity as that of Complainant shows that Respondent does not use the domain name in connection to any bona fide offering of goods or services, see Intesa Sanpaolo S.p.A. v. Abayomi Ajileye, Case No. 102396 (CAC March 19, 2019) “the disputed domain name resolves to a parking page containing PPC links to third parties' sites which relate to products or services competing with the Complainant's products or services. Such uses of the domain name are clearly not a legitimate non-commercial or fair use, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s mark.”.
Respondent did not reply to the complaint to defend its registration of the disputed domain name.
Under these circumstances, many Panels have found that those facts were generally evidence that Respondent lacks rights or legitimate interests in the disputed domain name, see Vivendi v. 宫宁 (gongning), WIPO Case No. D2020-0740, “The absence of substantive response and evidence by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, lead the Panel to find the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain names.”.
Therefore, the Panel finds that Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name and has therefore satisfied paragraph 4(a) of the Policy.
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