SAP SE v. venkat reddy / online trainings4u
Claim Number: FA2008001910152
Complainant is SAP SE (“Complainant”), represented by Meaghan H. Kent of Venable LLP, District of Columbia. Respondent is venkat reddy / online trainings4u (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <saptrainingsonline.com> ("the Domain Name"), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 26, 2020; the Forum received payment on August 26, 2020.
On August 27, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <saptrainingsonline.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 17, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@saptrainingsonline.com. Also on August 28, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 22, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant or a member of its group is the owner of the trade mark SAP, registered, inter alia, in the USA for computer programs since 2002. The mark has been used since 1988 and the Complainant owns <sap.com>.
The Domain Name, registered in 2014, is confusingly similar to the trade mark adding only the generic term "trainings online".
The Respondent does not have rights or a legitimate interest in the Domain Name, is not commonly known by the Domain Name and is not authorised by the Complainant.
The Domain Nam has been used for a site offering computer program related services using an SAP logo as a masthead and the Complainant’s official logo to suggest an affiliation with the Complainant that does not exist. This is not a bona fide offering of goods or services. It is registration and use in bad faith diverting Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant or a member of its group is the owner of the trade mark SAP, registered, inter alia, in the USA for computer programs since 2002. The mark has been used since 1988 and the Complainant owns <sap.com>.
The Domain Name, registered in 2014, has been used for a website using an SAP logo as a masthead and the Complainant’s official logo to offer computer related services.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consist of the Complainant’s SAP mark (registered in the USA for computer programs since 2002), adding only the generic term "trainingsonline" and the gTLD ".com".
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term "trainings online" does not prevent confusing similarity between the Domain Name and the Complainant's registered trade mark.
The gTLD ".com" does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so this cannot be legitimate noncommercial fair use.
It is clear from the evidence that the Respondent has used the site attached to the Domain Name to promote competing computer services which are not connected with the Complainant. The usage of the Complainant’s SAP mark which has a significant reputation in relation to computer programs is not fair as the web site does not make it clear that there is no commercial connection with the Complainant and the Respondent appears to refer to itself, its business and/or its services using SAP in a misleading way passing itself off as or as authorised by the Complainant. As such this cannot amount to the bona fide offering of goods and services. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s trade mark in this way. As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
In the opinion of the panelist the use made of the Domain Name in relation to the site was confusing and disruptive in that visitors to the site might reasonably have believed it was connected to or approved by the Complainant as it offered computer program related services under a Domain Name containing the Complainant’s mark attached to a site using the Complainant’s official logo and an SAP mark as a masthead. The use of the Complainant's logo mark shows that the Respondent was aware of the Complainant and its rights, products and business at the time of registration.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web site and services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships not connected with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those third party businesses and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <saptrainingsonline.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 22, 2020
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