Audi AG v. MACS MEDIA LIMITED et al.
Claim Number: FA1411001591364
Complainant: Audi AG of Ingolstadt, Germany.
Complainant Representative: HK2 Rechtsanwälte of Berlin, Germany.
Respondent: MACS MEDIA LIMITED of Milton Keynes, Bucks, International, GB.
Respondent Representative: none
REGISTRIES and REGISTRARS
Registries: Uniregistry, Corp.
Registrars: Mesh Digital Limited
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Debrett Gordon Lyons, as Examiner.
Complainant submitted: November 21, 2014
Commencement: November 21, 2014
Default Date: December 8, 2014
Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure, Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of Fact:
Even though the Respondent has defaulted, URS Procedure 1.2.6. requires the Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1.] The registered domain name is identical or confusingly similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
The Complainant provided documentary evidence that it is the registered owner of German Trademark Regn. No. 39941866 for AUDI, registered from August 12, 2011, as well as documents to show that the trademark is in current use.
The disputed domain name fully incorporates the Complainant’s trademark and merely adds the extension “.sexy”. It is well established that the top level domain name is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between trademark and disputed domain name.
The Examiner finds that the disputed domain name is identical to the Complainant’s trademark and that the Complainant satisfied the elements of URS Procedure 1.2.6.1.
[1.2.6.2.] The Registrant has no legitimate right or interest to the disputed domain name.
The disputed domain name resolves to a website said to be under construction which states: “I am an Audi car lover”.
The Complainant argues that the Respondent has no right or legitimate interest to the disputed domain name, that he has never been authorized by the Complainant to register the disputed domain name, that he has no connection or affiliation with the Complainant, and that there has been no use of the domain name to justify a bona fide interest or to show fair non-commercial use of the name.
The Respondent did not deny these assertions in any way and therefore failed to prove any rights or legitimate interests in the disputed domain name.
The Examiner finds that Respondent has no rights to or legitimate interests in the disputed domain name and that the Complainant satisfied the elements of URS Procedure 1.2.6.2.
[1.2.6.3.] The disputed domain name was registered and is being used in bad faith.
It is self-evident from the statement on the undeveloped website that the Respondent targeted the Complainant and its trademark. The registration is not in good faith since the Respondent is not the owner of the trademark and, absent any use, the Examiner is satisfied that this is a case of “passive holding in bad faith” and therefore use in bad faith.
The Examiner finds that the disputed domain name was registered and is being used in bad faith and that the Complainant satisfied the elements of URS Procedure 1.2.6.3.
No abuse or material falsehood.
After reviewing the Complainant’s submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby orders the following domain names be SUSPENDED for the duration of the registration.
Debrett Gordon Lyons, Examiner
Dated: December 11, 2014
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