OSCARO.com v. WhoisGuard, Inc.
Claim Number: FA1905001844587
Complainant: OSCARO.com of Paris, France.
Complainant Representative: Nameshield of Angers, France.
Respondent: WhoisGuard Protected of Panama, PA.
REGISTRIES and REGISTRARS
Registries: DotOnline Inc.
Registrars: NameCheap, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Peter Müller, as Examiner.
Complainant submitted: May 23, 2019
Commencement: May 23, 2019
Default Date: June 7, 2019
Having reviewed the communications records, the Examiner finds that the 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").
The Complainant requests that the disputed domain name be suspended for the life of the registration.
Clear and convincing evidence.
No multiple Complainants or Respondents and no multiple disputed domain names require dismissal.
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 registered owner of International trademark registration no. 950157 OSCARO, which was registered on August 17, 2007 covering various goods and services in classes 7, 9, 11, 12, 16, 35, and 37 as well as documents to show that the trademark is in current use.
The disputed domain name fully incorporates the Complainant’s OSCARO Mark. It is well established that a domain name that wholly incorporates a trade mark may be confusingly similar to such trade mark for purposes of the URS Procedure despite the addition of additional generic terms, such as ”fr”, which is a common abbreviation of France, where the Complainant is located. In addition, it is also well established that the specific 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 the complainant’s trademark and the disputed domain name.
The Examiner finds that the disputed domain name is confusingly similar to the Complainant’s OSCARO Mark and that the Complainant satisfied the elements of URS Procedure 1.2.6.1.
[1.2.6.2.] The Respondent has no legitimate right or interest to the disputed domain name.
The Complainant argues that the Respondent has no rights or interests in respect of the disputed domain name, that it is not related to the Complainant’s business, that neither license nor authorization has been granted to the Respondent to make any use of the Complainant’s OSCARO Mark or to apply for registration of the disputed domain name by the Complainant, and that the disputed domain name points a website written in French, where the Respondent never identifies itself. 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.
The Complainant states that the disputed domain name is confusingly similar to the OSCARO Mark, that it points to a website written in French providing information regarding the Complainant, and that the Respondent was aware of the Complainant’s OCCARO Mark at the moment of the registration of the disputed domain name. With regard to bad faith use, the Complainant argues that the Respondent has intentionally attempted to attract for commercial gain, Internet users to Registrant’s website, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s website.
The Examiner accepts that the Respondent was most likely aware of the Complainant’s OSCARO Mark at the time of the registration of the disputed domain name and therefore registered the disputed domain name in bad faith as it refers to the Complainant on its website. As to bad faith use, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to its own for the purpose of earning click-through revenues from Internet users searching for the Complainant's website as set out in URS Procedure 1.2.6.3.d.
The Examiner finds that the disputed domain name were registered and are 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.
<oscaro-fr.online>
Mr. Peter Müller, Examiner
Dated: June 12, 2019
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