NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
PARTIES' CONTENTIONS:
COMPLAINANT:
1) Complainant argues that the disputed domain name is confusingly similar to its trademarks.
Complainant considers that the dispute domain name is confusingly similar to the Complainant’s registered trademarks.
Complainant establishes that the word at the core of its trademarks, “AVAST”, is highly distinctive, and that its trademarks are globally known brand with reputation selling on the 7th rank among antivirus software globally. In addition, Complainants argues that the word “AVAST” is automatically connected with it by an ordinary customer. Therefore, according to Complainant and based on previous UDRP decisions Complainant upholds its trademarks are widely well known.
Complainant emphasizes that the addition of a specific top level of a domain name such as “.COM”, “.ORG”, “.TV” or “.NET” does not affect the domain name for the purpose of determining the identity or similarity of domain name and a trademark.
Furthermore, to highlight the fact that the disputed domain name is confusingly similar to Complainant’s trademarks “AVAST”, Complainant describes the descriptiveness of the part “-subcriptions” of the disputed domain name, asserting that it evokes that the disputed domain name serves for the administration of subscriptions of Avast products.
Additionally, Complainant considers that the missing “s” in the part “-subcriptions” of the disputed domain name can be very easily overlooked by internet users, and that does not eliminate the confusing similarity with the older trademarks of the Complainant. Complainant estimates that, quite on the contrary, it makes the confusion more likely ass it makes an impression that the website is operated by the Complainant itself, and that customers will think that they are accessing a website affiliated with the Complainant.
2) Complainant further asserts that Respondent does not have any rights or legitimate interests in the disputed domain name.
Complainant recalls that it must make a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, and that once such case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent is not commonly known under the disputed domain name nor under the distinctive part “AVAST” before the beginning of the dispute, nor ownership of any identical or similar trademark, nor use of any identical or similar brand by the Respondent before the registration by the Respondent of the disputed domain name.
Moreover, Complainant asserts that Respondent was never granted neither license nor authorization to make any use of the disputed domain name.
Furthermore, Complainant highlights that Respondent did not use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services because Respondent has not provided the trademarked goods and services but has used the trademark for illegal activity, that is, phishing.
Finally, the disputed domain name is inactive, however registered in order to create trustworthy looking e-mail address for phishing purposes, according to Complainant.
3) Complaint finally comes down to the conclusion that Respondent’s registration and use of the disputed domain name amounts to bad faith.
First, Complainant maintains that there is no indication that the disputed domain name was registered and used in bona fide and that Respondent was aware of the registration and the use of the Complainant’s trademarks before the registration of the domain name.
Besides, Complainant affirms that it has a considerable reputation in the software sector due to its expanded exposure and its trademark and presence on the Internet through many domains incorporating the word AVAST.
Complainant further asserts that the Internet makes it easier to find out that it is well-known across national borders because a simple search on the Internet would reveal Complainant trademark and domain names presence.
Thus, Complainant claims that it is not conceivable that Respondent would not have had actual notice of the Complainant’s trademark rights when registering the disputed domain name. Complainant stresses that Respondent could, without difficulties, perform a similar search before registering the disputed domain name and would have then quickly learned that Complainants owns the AVAST trademarks and that the said trademarks have been used globally by Complainant.
Besides, Complainant states that Respondent’s use of the disputed domain name through a parking page cannot amount to legitimate use, especially as Respondent has not demonstrated any activity in respect of the disputed domain name and assimilates it to passive holding, which is evidence that Respondent is using the disputed domain name in bad faith.
Also, Complainant goes on arguing that the disputed domain name seeks to take advantage of an association with its businesses and its trademarks and that Respondent abuses the good reputation of Complainant and its products for phishing activity. Complainant concludes that such action constitutes bad faith.
Based on previous Panels decisions, Complainant contends that the mere registration of a domain name that comprises typos or incorporates the well-known trademarks plus a descriptive term by an unaffiliated entity can by itself create a presumption of bad faith.
Regarding the passive holding of the disputed domain name by Respondent, Complainant relies that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding.
Besides, Complainant puts forward that its trademarks are distinctive and well-known in its industry. Therefore, Complainant believes that Respondent concealed its identity is also a factor to deduce bad faith.
Finally, Complainant contends that there is no plausible reason why Respondent registered the disputed domain name other than to intentionally attempt to attract for commercial gain Internet users to its website or another online location, and to tarnish the trademarks at issue, by creating a likelihood of confusion with the Complainant’s trademarks.
RESPONDENT:
Respondent did not provide any response to the complaint, and is therefore in default.
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