{
    "case_number": "CAC-UDRP-103768",
    "time_of_filling": "2021-04-30 09:33:07",
    "domain_names": [
        "brevillebes870xl.net"
    ],
    "case_administrator": "Denisa Bilík (CAC) (Case admin)",
    "complainant": [
        "Breville Pty Ltd"
    ],
    "complainant_representative": "Coöperatieve Vereniging SNB-REACT U.A.",
    "respondent": [
        "Webspresso Netmedia"
    ],
    "respondent_representative": null,
    "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nThe Complainant has been the exclusive rights owner of the BREVILLE trademarks since at least 1989 and its rights predate the registration of the disputed domain name, which was created on October 3, 2015.   The disputed domain name incorporates such trademark in its entirety together with the term “BES870XL”, which represents the model name of one of the espresso coffee makers sold under the BREVILLE trademarks.  The incorporation of the trademark in the disputed domain name is sufficient to find confusing similarity.  Such confusing similarity is strengthened by the addition of the model number as it suggests a commercial connection between the Complainant and the Respondent where there is none.\r\n\r\nThe disputed domain name has been registered for commercial purposes, namely the use of the Amazon affiliate system.  The website associated with the disputed domain name claims to provide a review of the relative espresso maker which features Amazon affiliate links containing a monetization tag redirecting to the well-known online retail platform at “www. amazon.com”.  The earliest historic WhoIs entry for the disputed domain name dates from September 2017 and features the same use, such that the Complainant concludes that the said use has been continued since at least 2017.\r\n\r\nThe Respondent is not making a bona fide offering of goods or services.  The Complainant has no existing or past commercial ties with the Respondent.  The Respondent’s website contains unverified consumer reviews in order to appear as if it is a promotional website for the Complainant’s products.  The Respondent hopes to achieve commercial gain through the Amazon affiliate system.  The Respondent has not received authorization for its use of the disputed domain name and has never been granted any rights for the use of the Complainant’s trademarks.  In the absence of such, no actual or contemplated bona fide or legitimate use of the disputed domain name can reasonably be claimed.\r\n\r\nIt is generally not permissible to register knowingly a domain name that is the same as another’s trademark rights in order to seek traffic to a commercial website.  The Respondent cannot satisfy the narrow exception to the general rule found in the “Oki Data” test, in that there is no indication that the Respondent is actually offering the goods at issue or has ever acquired such goods for resale, nor does the Respondent accurately and prominently disclose its lack of a commercial relationship with the Complainant.  The Respondent’s “Disclaimer” page is linked only from the bottom of the homepage and merely disclaims the accuracy of the information on the Respondent’s website.  The fact that the Respondent is seeking affiliate revenue does not constitute a bona fide purpose.  The Respondent is not commonly known by the disputed domain name and there is no credible concrete evidence of such on the Respondent’s website.  The Respondent does not hold any genuine trademark right.  Use of the Complainant’s trademark, even if used in a “trademark sense” does not prove that the Respondent is commonly known by that expression.\r\n\r\nThe Respondent is not making a non-commercial use of the disputed domain name.  The Respondent is not making fair use of the disputed domain name.  Its use effectively suggests sponsorship or endorsement by the Complainant.  The website content does not prima facie support a bona fide referential use as it is a pretext for commercial gain via affiliate links.  The consumer reviews are unverified at best and without source or identity of the author.\r\n\r\nThe disputed domain name was registered in bad faith and in the knowledge of the Complainant’s rights.  The Respondent was aware of the Complainant’s mark because it seeks to derive revenue from an affiliate programme through the website mentioning the Complainant’s goods.  The Respondent’s website copies the Complainant’s copyright protected product photographs.  It attempts to give the false impression that the website is affiliated with the Complainant.  The Respondent cannot pass itself off as an affiliate of the Complainant for commercial gain.  Amazon’s own affiliate policy prohibits misappropriation of copyright and trademarks.  The registration and use of a domain name identical or confusingly similar to a trademark solely for the purpose of collecting affiliate fees has been held to satisfy the requirement of bad faith.\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": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.",
    "rights": "The Complainant has, to the satisfaction of the Panel, shown that 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 that 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 the UDRP were met and there is no other reason why it would be inappropriate to provide a decision.",
    "decision": "Accepted",
    "panelists": [
        "Andrew Lothian"
    ],
    "date_of_panel_decision": "2021-05-27 00:00:00",
    "informal_english_translation": "The Complainant is the owner of the following registered trademarks in respect of the BREVILLE mark:\r\n\r\nInternational registered trademark no. 1260519 for the word mark BREVILLE, granted on March 17, 2015 in classes 7, 11, and 21 and designated in respect of 2 jurisdictions; \r\n\r\nAustralian registered trademark no. 1612570 for the word mark BREVILLE, granted on March 20, 2014 in classes 7, 8, 9, 11, 21, 35, 41, 42 and 43;\r\n\r\nAustralian registered trademark no. 1114792 for the word mark BREVILLE, granted on May 23, 2006 in classes 8, 11 and 21; and\r\n\r\nNew Zealand registered trademark no. 167499 for the word mark BREVILLE, granted on December 21, 1989 in class 9.",
    "decision_domains": {
        "BREVILLEBES870XL.NET": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}