Decision for dispute CAC-UDRP-108004

1) The Panel is of the opinion that the disputed domain name is confusingly similar to the Complainant's earlier trademark "HYPRO". As a matter of fact, this trademark is entirely reproduced in the disputed domain name with the addition of a hyphen and of the term "pumps". Now, regarding the hyphen, it must be considered that, in accordance with the consensus view of past UDRP panels, this element, which is devoid of any meaning, should not be taken into account in the comparison between the earlier trademark and the disputed domain name. Concerning the term "pumps", the addition of this generic term, clearly associated to the Complainant's business (development of pumps for agriculture), enhances the confusing similarity (see Intesa Sanpaolo SPA v. Milen Radumilo, CAC Case No. 103027 related to the domain name <intesasanpalo-convalida.com> and ARCELORMITTAL v. Private Private, CAC Case No. 105049 related to the domain <arcelormittal-burns.com>). Finally, as a mere technical part of the disputed domain name, the gTLD “.com” may be disregarded in determining confusing similarity. The Complainant therefore succeeds on the first element of the Policy.

2) The Complainant demonstrated that the content of the website to which the disputed domain name is linked offers for sale products bearing the "HYPRO" trademark. The Complainant clearly considers that Respondent has the hope and the expectation that Internet users looking for the brand "HYPRO" will be directed to the website corresponding to the disputed domain name. The Panel finds that said activity, of course, does not provide a legitimate interest in the disputed domain names under the Policy. Furthermore, the Complainant provided prima facie evidence that the Respondent does not have rights or legitimate interests in respect of the disputed domain nam as it is not commonly known under the disputed domain name and was never authorized to use the "HYPRO" trademarks by the Complainant. The Respondent, in the absence of any Response, has not shown any facts or element to justify prior rights or legitimate interests in the disputed domain names. The Complainant therefore succeeds on the second element of the Policy.

3) Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following is sufficient to support a finding of bad faith:

(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the disputed domain name; or

(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent's website or location.

The Respondent registered the disputed domain names years after the use and registration of the "HYPRO" mark by the Complainant. In consideration of the reputation achieved by "HYPRO" in its specific business sector, it is clear that the Respondent was surely aware of the Complainant's trademark when he registered the domain name in dispute. Moreover, the Respondent appears to have attempted to benefit commercially from the appropriation of the "HYPRO" mark in the disputed domain name. The use of the mark "HYPRO" which enjoys a good reputation in its field of activity for products identical to those that are part of the Complainant's business, clearly indicates that the disputed domain name was chosen by the Respondent to take advantage of the Complainant's marks reputation. This finding leads to the obvious conclusion that the disputed domain name has been registered in bad faith (Research In Motion Limited v. Privacy Locked LLC/Nat Collicot - WIPO Case No. D2009-0320; The Gap, Inc. v. Deng Youqian - WIPO Case No. D2009-0113; AXA S.A. v. P.A. van der Wees - WIPO Case No. D2009-0206; BHP Billiton Innovation v. Ravindra Bala - WIPO Case No. D2008-1059).

The Panel also finds that, by linking the disputed domain name to a website whose content imitates Complainant’s products and presentation, seeks to compete directly with the Complainant, and misleadingly incorporates the "HYPRO" trademark in the displayed products, the Respondent has intentionally attempted to attract Internet users to its websites for commercial gain, by causing a likelihood of confusion with the trademark "HYPRO" as to the source, sponsorship, affiliation or endorsement of its websites and the products promoted therein.

As the conduct described above clearly falls within paragraph 4(b)(iv) of the Policy (Triumph International Vietnam Ltd v. Tran Quoc Huy - WIPO Case No. D2017-0340), the Panel concludes that the Respondent registered and is using the disputed domain names in bad faith pursuant to the paragraph 4(a)(iii) of the Policy. The Complainant therefore succeeds also on the third element of the Policy.