{ "case_number": "CAC-UDRP-102279", "time_of_filling": "2019-01-31 11:57:05", "domain_names": [ "filehippoa.com" ], "case_administrator": "Šárka Glasslová (Case admin)", "complainant": [ "FileHippo s.r.o." ], "complainant_representative": "Rudolf Leška (Rudolf Leška, advokát)", "respondent": [ "whois agent" ], "respondent_representative": null, "factual_background": "The Complainant holds several trademark registrations for “FILEHIPPO” and the Complainant also holds a domain name including the sign “FILEHIPPO” as .\r\n\r\nOn November 27, 2017, the Respondent registered the disputed domain name . The domain name is currently available which shows that there is use at the disputed domain name. When visiting the disputed domain name, it is evident that “FILEHIPPO” trademark, which is registered trademark of the Complainant, is being used on the top of the page.\r\n\r\nThereon, the Complainant has filed the present complaint.\r\n", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings that are pending or decided and that relate to the disputed domain name.", "no_response_filed": "PARTIES' CONTENTIONS:\r\n\r\nCOMPLAINANT:\r\n\r\nThe Complainant is holder of the domain name created on November 1, 2004 which is curated software download site. It has a section that contains a list of most recently updated computer programs, and another section which lists the most popular downloads. The computer programs are organized into categories and the Complainant’s website contains information about computer programs as well as articles containing recent technology news. The aim of the website is to provide users the newest versions of software. According to the records of SimilarWeb which track the traffic of the websites, the Complainant´s domain is monthly visited by approximately 34,500,000 visitors. \r\n\r\nThe Complainant is also the owner of aforesaid “FILEHIPPO” trademarks which are registered also for software, freeware, installation, maintenance of software.\r\n\r\n1. THE DISPUTED DOMAIN NAME IS CONFUSINGLY SIMILAR TO THE COMPLAINANT’S TRADEMARKS “FILEHIPPO“\r\n\r\nThe Complainant argues that the trademark of the Complainant has its own distinctive character since it has no generic meaning and it is created by adding the “hippo“ phrase which is an abbreviation for “hippopotamus“ to the phrase “file“ which means “suite“. The trademark of the Complainant also gain its well-known status by its 14-year-long contentious use on the goods and services on which the trademark has been registered and it has 34,500,000 monthly visitors.\r\n\r\nIt is more than obvious that the disputed domain name is confusingly similar to the Complainant’s trademarks “FILEHIPPO”, as it differs only for the addition of letter “A” in the end of the trademark which is not able to change overall impression and does not eliminate the confusing similarity with the older trademarks of the Complainant. Similar cases mentioned by the Complainant are as follows: EAuto, L.L.C. v. EAuto Parts, WIPO Case No. D2000-0096, Caterpillar Inc. v. Off Road Equipment Parts, WIPO Case No. FA0095497.\r\n\r\nAdditionally, the top level domain names as “.com”, “.org”, “.tv” or “.net” does not affect the similarity examination, in accordance with the decisions of Magnum Piercing, Inc. v D. Mudjackers and Garwood S. Wilson, Sr. WIPO Case No. D-2000-1525; Hugo Boss A.G. v. Abilio Castro, WIPO case No. DTV2000-0001; Radale Inc. v. Cass Foster, WIPO case No. DBIZ2002-00148. Carlsberg A\/S v. Brand Live television, WIPO case No. DTV-2008-0003.\r\n\r\nFinally, the Complainant argues that an ordinary consumer will believe that the disputed domain name registered by the Respondent is owned by the Complainant or its partner and will access the website only due to its misleading character assuming that the download service is provided directly by the Complainant or alternatively by its partners and therefore will except high quality software without any malwares. Since the Respondent is identically using the logo and trade dress of the Complainant, it will increase the risk of confusion as well. \r\n\r\n\r\n2. THE RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTERESTS IN RESPECT OF THE DISPUTED DOMAIN NAME \r\n\r\nThe Complainant states that the Respondent has no rights on the disputed domain name while there is also no evidence suggests that the Respondent has been commonly known within the consumers by the disputed domain name or by the distinctive part “FILEHIPPO” included in the disputed domain name. Before the beginning of this dispute nor ownership of any identical or similar trademark nor use of any identical or similar brand by the Respondent before the registration of the disputed domain name have been proved. \r\n\r\nLastly, the Complainant states that there is no fair or bona fide use of the disputed domain name. Despite there is a disclaimer in the website offered under the disputed domain name, the mentioned disclaimer does not clarify the relationship between the Respondent and the Complainant and it also does not constitute a bona fide use since it only regards the liability of the web site holder. The Complainant highlights that it is only by unauthorised use of the trademark that the potential customer is brought to the website (containing the disclaimer) in the first place. Moreover, the use of the Complainant´s logo usually excludes any possibility of bona fide reference to Complainant’s services. \r\n\r\n3. THE DISPUTED DOMAIN NAME WAS REGISTERED AND IS BEING USED IN BAD FAITH\r\n\r\nThe Complainant states that the disputed domain name was registered and is being used in bad faith. The Complainant alleges that the Respondent was clearly aware of the registration and use of the Complainant’s trademark „FILEHIPPO“ before the registration of the disputed domain name as follows from the use of the Complainant’s logo, mark and trade dress and links to the Complainant’s website by the Respondent. \r\n\r\nFurthermore, the Complainant also states that the disputed domain name is being used by the Respondent to reach the Complainant´s customers and offer them the identical download service as is offered by the Complainant on its website. In addition to this, the Complainant also indicates that the Respondent uses the disputed domain name in bad faith by attempting to attract, for commercial gain, Internet users to the Respondent’s website and by creating a likelihood of confusion with the Complainant’s “FILEHIPPO“ mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.\r\n\r\nFinally, it is also mentioned by the Complainant that the use of a proxy service by the true owner hidden behind the Respondent is often by itself an indicator of bad faith.\r\n\r\nRESPONDENT: \r\n\r\nNO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.\r\n", "rights": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).", "no_rights_or_legitimate_interests": "The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).", "bad_faith": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).", "procedural_factors": "The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.", "decision": "Accepted", "panelists": [ "Mrs Selma Ünlü" ], "date_of_panel_decision": "2019-02-11 00:00:00", "informal_english_translation": "The Complainant has submitted evidence, which the Panel accepts, showing that it is the registered owner of the following:\r\n\r\n- the EU trademark FILEHIPPO (Registration No. 008893745 ) dated February 18, 2010;\r\n- the UK trademark FILEHIPPO (Registration No. UK00002514818) dated April 28, 2009;\r\n\r\nMoreover, the Complainant is also the owner of the official website www.filehippo.com which is firstly registered by a company named Media Limited transferred to Avast Software s.r.o and finally transferred again to the Complainant on December 10, 2017 as a result of the Intellectual Property Assignment Agreement submitted as an annex of the Complaint as well. \r\n", "decision_domains": { "FILEHIPPOA.COM": "TRANSFERRED" }, "panelist": null, "panellists_text": null }