The Complainant is Agfa-Gevaert N.V., Belgium, represented by Novagraaf Belgium NV/SA, Belgium.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States of America (“United States”).
The disputed domain name <agfay.com> is registered with NameSilo, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 4, 2020. On May 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 6, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On May 6, 2020, the Center sent a request for clarification on the Respondent information to the Complainant. On May 7, 2020, the Center received the Complainant’s clarification via an amended Complaint.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 4, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 8, 2020.
The Center appointed Jacob (Changjie) Chen as the sole panelist in this matter on June 22, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant Agfa-Gevaert NV, incorporated in Belgium, develops, produces and manufactures a range of imaging systems and IT solutions. The Complainant’s operational activities include offset solutions, digital print and chemicals, radiology solutions, and healthcare IT. The Complainant has its production and research centers in many countries including Belgium, the United States, the United Kingdom, Austria, China, and Brazil. The Complainant owns rights upon numerous worldwide registrations of AGFA trademark, including No.003353463 the European Union trade mark, registered on January 24, 2005.
According to the information disclosed by the Registrar, the Respondent is Domain Administrator, See PrivacyGuardian.org, located in the United States.
The disputed domain name is <agfay.com>, registered on December 24, 2019. The disputed domain name resolves to a website displaying gambling and pornographic content.
The Complainant contends that the disputed domain name is identical to its AGFA trademark. The additional letter “y” is insufficient to differentiate the similarity between the disputed domain name and the Complainant’s AGFA trademark.
The Complainant further contends that to the best of the Complainant’s knowledge, the Respondent has not been commonly known by the disputed domain name. The Complainant has not licensed or otherwise authorized the Respondent to use its AGFA trademark or registering any domain name incorporating the AGFA trademark.
The Complainant finally contends that the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
The Complainant owns rights upon numerous worldwide registrations of AGFA trademark, which far predate the registration date of the disputed domain name (December 24, 2019). The Complainant has successfully established its rights upon AGFA trademark.
It is well established that the generic Top-Level Domain (“gTLD”) suffix “.com” as a standard registration requirement is disregarded in the assessment of the confusing similarity between the disputed domain name and the Complainant’s AGFA trademark.
The disputed domain name <agfay.com> incorporates the Complainant’s AGFA trademark in its entirety. Previous UDRP cases have established that incorporation of a complainant’s trademark in its entirety into a domain name is sufficient to establish that the domain name is identical or confusingly similar to the complainant’s trademark. The addition of the letter “y” after the Complainant’s AGFA trademark does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s AGFA trademark. See BHP Billiton Innovation Pty Ltd v. Oloyi, WIPO Case No. D2017-0284.
Thus, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s AGFA trademark.
The Panel is satisfied that the Complainant has made out a prima facie case that the Respondent does not have rights or legitimate interests in respect of the disputed domain name. The burden of production is hence shifted to the Respondent to rebut the Complainant’s contentions. In this case, the Respondent’s failure to submit a response to rebut the Complainant’s prima facie case is deemed to have satisfied paragraph 4(a)(ii) of the Policy according to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. See Construction Skills Certification Scheme Limited v. Mara Figueira, WIPO Case No. D2010-0947.
According to the Complainant’s evidence, the Respondent directed the disputed domain name to a website showing gambling and pornographic content. The Panel views that the Respondent’s use of the disputed domain name cannot be considered as making a legitimate noncommercial or fair use of the disputed domain name nor using the disputed domain name in connection with a bona fide offering of goods or services. Further, there is no evidence on record showing that the Respondent has been commonly known by the disputed domain name.
Therefore, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Panel notes that the disputed domain name was registered on December 24, 2019, far later than the registration date of the Complainant’s AGFA trademark. The Panel finds that the Complainant’s trademark AGFA is not a generic term and has distinctiveness. Given the reputation of the Complainant and its AGFA trademark, the Panel holds that the Respondent must have awareness of the Complainant’s trademark and/or business at the time of registering the disputed domain name, because a simple Internet search with key word “agfa” shows all top search results connecting to the Complainant. Thus, without any rights or legitimate interests, the Respondent’s registration of the disputed domain name is indicative of bad faith.
The Panel observes that the disputed domain name resolves to a website showing gambling and pornographic content. The Panel views that the Respondent’s purpose of using the disputed domain name is to attract Internet users who are not looking for a gambling and pornographic website but were instead looking for products and/or services associated with the Complainant and its AGFA trademark. Therefore, the Panel holds that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, by directing Internet users to its website. See Motorola, Inc. v. NewGate Internet, Inc., WIPO Case No. D2000-0079.
For the reasons above, the Panel concludes that the disputed domain name was registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <agfay.com> be transferred to the Complainant.
Jacob (Changjie) Chen
Sole Panelist
Date: July 7, 2020