ECR European Consumer Rights GmbH v. WhoisGuard, Inc.
Claim Number: FA2012001924132
Complainant: ECR European Consumer Rights GmbH of Graefelfing, Germany.
Complainant Representative:
Respondent: WhoisGuard Protected / WhoisGuard, Inc. of Panama Panama, PA.
Respondent Representative:
REGISTRIES and REGISTRARS
Registries: Public Interest Registry
Registrars: NameCheap, Inc.
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.
James Bridgeman SC, as Examiner.
Complainant submitted: December 8, 2020
Commencement: December 9, 2020
Default Date: December 28, 2020
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") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Complainant has adduced clear and convincing evidence of its ownership and use of the VERBRAUCHERRITTER trademark established by its ownership of German registered trademark, registration number 302018006464, registered on May 15, 2018 for services in classes 45, 35, 36, 38, 41 and 42.
Complainant has an established Internet presence and maintains a website to which its domain name <verbraucherritter.de> resolves.
As Respondent has defaulted, there is no information available about Respondent except for that provided in the Complaint.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires 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.
Complainant has adduced clear and convincing uncontested evidence of its ownership of the VERBRAUCHERRITTER service mark acquired by its ownership of the abovementioned German trademark registration.
The disputed domain name is identical to Complainant’s trademark because the only difference between the two, is the generic Top Level Domain extension <.org> which may be ignored for the purpose of comparison.
As the disputed domain name is identical to the VERBRAUCHERRITTER mark in which Complainant has rights, Complainant has established the third element of the test in Policy ¶ 4(a)(iii)
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. In support of its allegation, Complainant has submitted in evidence screenshots of Complainant’s own website and the website to which the disputed domain name resolves. Both are almost identical. In such circumstances the burden of production shifts to Respondent to establish its rights or interests. Respondent has failed to discharge the burden of production.
In these circumstances this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has established the second element of the test in Policy ¶ 4(a)(ii).
Complainant has convincingly alleged that the disputed domain name <verbraucherritter.org> was registered by an unknown person and used to show an exact copy of Complainant’s website. In support of this allegation Complainant refers to screenshots of both its own website and the website of Respondent to which the disputed domain name resolves. It is improbable that in these circumstances, and in the absence of any response from Respondent, which has availed of a privacy service to shield his/her identity that the disputed domain name was registered for any reason other than to impersonate Complainant. This Panel finds therefore that on the balance of probabilities the disputed domain name was registered in bad faith.
This Panel accepts Complainant’s allegation that the unknown person not only violates Complainant’s trademark rights and misleads customers.
Complainant alleges but has not adduced any evidence to show that Respondent is using the website to which the disputed domain name resolves to fraudulently collect data by operating domain and e-mail addresses in our name. While this allegation is plausible in the circumstances it is not proven.
This Panel finds that by using the disputed domain name the registrant has intentionally attempted to attract for commercial gain, Internet users to the registrant’s web site or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s web site or location or of a product or service on that web site or location. Such use constitutes bad faith for the purposes of the Policy.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has established the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy sought.
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:
<verbraucherritter.org>
James Bridgeman SC, Examiner
Dated: December 30, 2020
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