The Complainant demonstrated that it has various GOLA registered trademarks. The disputed domain names contain the Complainant’s GOLA trademark in its entirety, together with the country names: “IRELAND”, “PORTUGAL”, “ESPANA”, “AUSTRALIA” and “COLOMBIA”. Complainant’s GOLA mark is fully recognizable in all five disputed domain names. It is the first and dominant element in all disputed domain names. The generic Top-Level Domain in respect of the disputed domain names, in this case “.com”. It is typically disregarded for the purposes of the comparison under the first element analysis of the Policy. Accordingly, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s GOLA trademark.
The Complainant does not directly address the provisions of the Policy, in particular, paragraphs 4(c)(i), 4(c)(ii) and 4(c)(iii), regarding whether the Respondent has rights or legitimate interests in the disputed domain name. The Complainant notes that there is no commercial relationship between the Parties, that the Complainant has not authorized the Respondent to use its trademark in the disputed domain names and on the associated websites in the case of <golaportugal.com>, and <golaespana.com>. The Complainant noted that the content set out on these aforementioned websites operated under the disputed domain names replicate the Complainant’s own website material without permission, evidencing this with a side-by-side screenshot comparison. A reverse image search has shown that five of the seven domain names us the same image, which is not featured on the genuine Gola websites. The Complainant suggests that the Respondent is merely collecting the Complainant’s customers’ data without permission. The Panel finds that these submissions are sufficient to constitute the requisite prima facie case that the Respondent has no rights and legitimate interests in the disputed domain names.
The Respondent has not rebutted the complaint, since it has not filed a Response in the administrative proceeding. The Panel has considered the possibility that the Respondent might be selling the Complainant’s genuine goods under the Complainant’s GOLA trademark. However, even if the Respondent had shown this, it would have been unable to establish all of the requirements of the well-known “OKI Data test” (see: Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). Notably, it would have had to establish that it was actually offering for sale only the trademarked goods and to show that its website accurately and prominently disclosed its (lack of) relationship with the Complainant. There is no evidence that the Respondent is selling genuine, or any, goods, and no such accurate and prominent disclosure is shown on the Complainant’s screenshots of the website associated with the disputed domain names.
The Panel therefore considers that it is reasonable in all of the above the circumstances to find that that the Respondent has no rights or legitimate interests in the disputed domain names.
With regards to the question of bad faith in respect of the disputed domain names, the Complainant has made provided evidence that the websites associated with the disputed domain names of <golaportugal.com>, and <golaespana.com> contain content cloned from the Complainant’s website. The said websites and the disputed domain names make prominent use of the Complainant’s GOLA trademark and the Complainant’s own website imagery. In these circumstances, the Respondent cannot have registered the disputed domains name other than in the full knowledge of the Complainant’s trademark.
The Complainant noted that the Respondent registered and used the disputed domain names for fraudulent purposes and, in particular, to obtain personal data from the Complainant’s customers by impersonating the Complainant, which has not been contested by the Respondent. In these circumstances, the Panel notes that Respondent has failed to advance any plausible good faith motivation for its registration and use of the disputed domain names.
In the absence of any relevant evidence or submissions from the Respondent to the contrary, the Panel considers it reasonable to infer from the facts and circumstances of this case that the Respondent had knowledge of the Complainant and its GOLA trademark when the Respondent registered the disputed domain names and, likewise, that it had the requisite intent to target such mark unfairly for its own commercial gain. The Panel finds that this constitutes registration in bad faith within the meaning of the Policy. The Panel also considers it reasonable to infer that, having registered the disputed domain names, the Respondent proceeded to use it in connection with cloned aspects of the Complainant’s website in order to confuse consumers into giving up their valuable personal data. The Panel finds that this constitutes use in bad faith within the meaning of the Policy.
The Panel holds, that given the fact that the domain names <GOLAIRELAND.COM>, <GOLAAUSTRALIA.COM> and <GOLACOLOMBIA.COM> were registered also by the Respondent on the same dates as the afore-mentioned, August 11, 2021 and August 24, 2021, although inaccessible for the public. The Panel takes into account the combination of the simultaneous registration of the domain names <GOLAIRELAND.COM>, <GOLAAUSTRALIA.COM> and <GOLACOLOMBIA.COM> together with the accessible domain names <golaportugal.com>, and <golaespana.com> of which the Complainant has provided evidence that these are being used to sell GOLA branded products. The Panel, based on the combination of these facts, with the earlier complaint (case number 104197) decides that it is clear that the Respondent has registered all five domain names in bad faith, of which two (<golaportugal.com> and <golaespana.com>) are indeed being used in bad faith.
In the absence of any relevant evidence or submissions from the Respondent to the contrary, the Panel based on the facts and circumstances of this case, holds that the Respondent had knowledge of the Complainant and its GOLA trademark when the Respondent registered the disputed domain names and, likewise, that it had intent to target the GOLA trademark unfairly for its own commercial gain. The Panel finds that this constitutes registration in bad faith within the meaning of the Policy. The Panel also considers that, having registered the five disputed domain names, the Respondent proceeded to use it in connection with cloned aspects of the Complainant’s website in order to confuse consumers. The Panel finds that this constitutes use in bad faith within the meaning of the Policy.
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