Rights
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s KAUFMAN BROAD trade mark. Where a complainant’s mark is recognizable within a domain name, the addition of other terms, irrespective of their meaning, will not prevent a finding of confusing similarity; see CAC Case No. 102382, MAJE v enchong lin.
Rights and legitimate interests
The use by the Respondent of the disputed domain name in order to resolve to a website containing PPC links which are associated with the Complainant’s business activities in the fields of real estate construction and development does not amount to a bona fide offering of goods and services as such links capitalize on the reputation and goodwill of the Complainant’s mark; see, by way of example, CAC Case No. 102360, ARCELORMITTAL (SA) v Milton Liqours lLC.
There is no evidence that the Respondent has been commonly known by the disputed domain name, nor does the Respondent’s use of the disputed domain name to point to a directory page amount to making a legitimate non-commercial or fair use of it.
The Complainant having made out a prima facie case in relation to the second element, the burden of proof shifts to the Respondent to rebut it; see, for example, CAC Case No. 102333, Amedei S.r.l. v sun xin. In the absence of any response by it to the Complaint, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Bad faith
The only known use to which the disputed domain name has been put is to point to a page hosting PPC links which are associated with the Complainant’s services. This suggests that the Respondent was aware of the Complainant and its KAUFMAN BROAD mark as at the date of registration of the disputed domain name and that it did not have any other use in mind for it as at the date of registration. In these circumstances, the Respondent’s registration leads to a presumption of bad faith; see for example CAC Case No 102157, FEDERATION FRANCAISE DE TENNIS (FFT) v Biswas, Jyotirmoy.
The Respondent is seeking to gain income from Internet users who, having regard to the confusing similarity between the disputed domain name and the Complainant’s KAUFMAN BROAD mark, are apt to visit the Respondent’s website under the impression that it is owned and/or operated by, or with the authority of, the Complainant. Whilst Internet users are likely to appreciate, on arriving at the Respondent’s website, that it has no connection with the Complainant, the Respondent will, by then, have had the opportunity to earn PCC income from them; see, for example, Yahoo! Inc. v. Hildegard Gruener, WIPO Case No. D2016-2491. The Respondent’s conduct therefore falls within the example of bad faith registration and use set out at paragraph 4(b)(iv) of the Policy namely that, by using the disputed domain name, it has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.
The Panel accordingly finds that the disputed domain name was both registered and used in bad faith.
|