{ "case_number": "CAC-UDRP-102373", "time_of_filling": "2019-03-12 13:37:44", "domain_names": [ "avastsupport.com" ], "case_administrator": "Šárka Glasslová (Case admin)", "complainant": [ "Avast Software s.r.o." ], "complainant_representative": "Rudolf Leška (Rudolf Leška, advokát)", "respondent": [ "Pham Dinh Nhut" ], "respondent_representative": null, "factual_background": "The Complainant is a large security software company using next-gen technologies to fight cyber attacks in real time. The Complainant is well known on the market globally as a reliable company with a long tradition from 1988. Its popularity on the market is supported by the fact that AVAST software has more than 400 million users. \r\n\r\nFurthermore, the Complainant is a legal successor of the company which was earlier named Avast Software s.r.o. (previously Avast Software a.s.). By virtue of law, rights and obligations of the previous Avast Software s.r.o. company passed on its successor – the Complainant. \r\n\r\nThe Complainant distributes its products i.a. via its website where a customer can find product information and can directly download AVAST software. On this official website (under ) the Complainant also offers customer support relating to AVAST software.\r\n\r\nThis disputed domain name was created on October 14, 2006 by a third person. However, after its creation the domain name was transferred several times. According to the Domain report prepared by WHOIS the Respondent became holder of the disputed domain name in December 2011.\r\n\r\nThe Respondent uses the disputed domain name for advertising on a parking page comprised of pay-per-click links. Some links (which are shown after clicking on the content of the website) relate to the Complainant´s antivirus AVAST (some links refer to official website ), some refers to competitor’s products. As the content of the disputed domain name is changing in time it also contains unrelated links (for example advertisement on flowers, cars etc.).\r\n", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.", "no_response_filed": "PARTIES' CONTENTIONS:\r\n\r\nCOMPLAINANT:\r\nThe Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trademark since it incorporates the mark in its entirety with the sole addition of the postfix \"support\". Support is a descriptive term in the software branch. The generic Top-Level domain suffix “.com” is insufficient to change the overall impression and do not eliminate the confusing similarity with the Complainant’s prior trademark.\r\n\r\nThe Complainant states that “AVAST” is the distinctive part in the disputed domain name. It is the first dominant part to which an attention of the public is concentrated. An additional part “-support” is descriptive in nature meaning providing help to the customers. Therefore, this additional part is not able to change overall impression and does not eliminate the confusing similarity with the older trademarks of the Complainant and this is even more true in a situation where Complainant itself provide customer support under its official website . The Complainant argues that quite on the contrary, it would make the confusion more likely as it makes an impression that the contested website is operated by the Complainant with the intention to provide support to its own customers.\r\n\r\nMoreover, the Complainant emphasises that the Respondent contributes to the confusion of the public by placing the trademark “AVAST” of the Complainant on the websites available under disputed domain name presumably in order to abuse this very famous trademark in his favour and by illegally offering Complainant’s copyrighted software AVAST for download. \r\n\r\nThe Complainant states that the Respondent has no rights or legitimate interests in respect of the disputed domain name because:\r\n\r\n- no evidence suggests that the Respondent has been commonly known within the consumers by the disputed domain name or by the distinctive part “AVAST” included in the disputed domain name before the beginning of this dispute; \r\n- no ownership of any identical or similar trademark nor use of any identical or similar brand by the Respondent before the registration of the contested domain name is shown;\r\n- the Complainant did not grant any license or authorization to register or use the disputed domain name by the Respondent;\r\n- the use of the Complainant’s trademark on every page of the disputed website in the absence of Complainant’s authorization represents illegal unauthorized conduct of the Respondent.\r\n\r\n\r\nThe Complainant submits that the Respondent registered and used the disputed domain name in bad faith for the following reasons:\r\n\r\n- in case the disputed domain name was transferred to third party, it is well established that the date a panel will consider in assessing bad faith is the date on which the current registrant acquired the domain name (WIPO Overview 3.0); \r\n- as summarised in WIPO Overview 3.0, in cases where the domain name registration is masked by a privacy or proxy service and the complainant credibly alleges that a relevant change in registration has occurred, it would be incumbent on the respondent to provide satisfactory evidence of an unbroken chain of registration;\r\n- respondent failure to do so has led panels to infer an attempt to conceal the true underlying registrant following a change in the relevant registration;\r\n- such an attempt may in certain cases form part of a broader scenario whereby application of UDRP paragraph 4(b)(iv), read in light of paragraph 4(a)(ii), can support an inference of bad faith registration for the respondent to rebut;\r\n- the Respondent was clearly aware of the registration and the use of the Complainant´s trademarks before the registration of the domain name as follows from the Respondent´s explicit references on AVAST software of the Complainant. Furthermore, the Panel held that the respondent cannot claim rights as a first-served registrant as it ought to have searched for the pre-existence of the Complainant´s trademark before acquiring the disputed domain name (Capitalmatch Pty Ltd v. Registrar Technician, BestRegistrar.Com, WIPO case no. D2015-2165);\r\n- there is no indication that the disputed domain name was registered and is used in bona fide;\r\n- furthermore, the use of a proxy server by the true owner hidden behind the Respondent is markedly corroborate a finding of bad faith(Carrefour v Whois Agent, Whois Privacy Protection Service Inc. \/ Andres Saavedra, WIPO Case no. D2016-0608). \r\n\r\nRESPONDENT:\r\nNo administratively compliant Response has been filed. The Respondent did not reply to the Complainant’s contentions. ", "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.\r\n\r\nThe language of the Registration Agreement is Vietnamese. However, in view of the circumstances of the case, including the undisputed allegations of the Complainant that the website corresponding to the disputed domain name is entirely in English, and the fact that Respondent has been given a fair chance to object but has not done so, the Panel determines in accordance with paragraph 11(a) of the UDRP Rules that the language of the proceeding be English. ", "decision": "Accepted", "panelists": [ "Dr. jur. Harald von Herget" ], "date_of_panel_decision": "2019-04-20 00:00:00", "informal_english_translation": "The Complainant is the owner of several trademark registrations for AVAST (word mark), including the following:\r\n\r\n- international registered no. 839439 for goods and services in the classes 9 and 42, including software (Basis German registration with designation for AU - DK - EE - FI - GB - GR - IE - JP - LT - SE – TR - US and by virtue of Article 9sexies of the Madrid Protocol also for the following countries: AT - BG - BX – CH - CN - CY - FR - HU - IT – KZ - LV - PL - RO – RU - SI - SK) with registration date June 22, 2004;\r\n\r\n- registered EU no. 010253672 for goods and services in the classes 9, 16, 42 with priority from August 25, 2011.\r\n\r\nThe Complainant is also the owner of the IR no. 1011270 AVAST! trademark and the US no. 87236956 AVAST figurative trademark, both in class 9, and the domain name . ", "decision_domains": { "AVASTSUPPORT.COM": "TRANSFERRED" }, "panelist": null, "panellists_text": null }