The Complainant is SIX Group AG of Zürich, Switzerland, represented by Meisser & Partners AG, Switzerland.
The Respondent is mayangroup of Hollywood, Florida, United States of America (“US”).
The disputed domain name <six-swissexchange.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 3, 2013. On January 4, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 4, 2013, 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.
The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 10, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 30, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 31, 2013.
The Center appointed John Swinson as the sole panelist in this matter on February 6, 2013. 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 is SIX Group AG, a Swiss stock exchange, operating primarily in the Swiss financial sector, under the trade marks SIX and SIX SWISS EXCHANGE. Approximately a quarter of the Complainant’s revenue is generated outside of Switzerland. The Complainant is present in 24 foreign countries, including France, Austria and the US.
The Complainant holds the following trade mark registrations:
- SIX, Swedish Registration No. 0260304, registered July 10, 1989;
- SIX, International Registration No. 990796, registered October 2, 2008;
- SIX SWISS EXCHANGE, Swiss Registration No. 582833, registered August 21, 2008; and
- SIX SWISS EXCHANGE, International Registration No. 996722, registered February 11, 2009.
The Respondent is mayangroup of Florida, US. The Respondent did not file a Response, and consequently little information is known about the Respondent.
The Disputed Domain Name was registered on January 10, 2012. It redirects to a website titled “Start-up Investment” (located at www.start-upinvestment.com) which offers various services for start-up companies, including services in relation to initial public offerings, private placements, investor relations, public relations, business plans and prospectuses.
The Complainant’s contentions are as follows.
The Disputed Domain Name contains both the SIX and the SIX SWISS EXCHANGE trade marks in their entirety. Further, the hyphen serves to highlight the term SIX.
The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name for the following reasons:
- the Respondent is not commonly known by the Disputed Domain Name;
- the Complainant has not authorized or licensed the Respondent to use the Complainant’s trade marks;
- the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name; and
- the Disputed Domain Name is not being used in connection with a bona fide offering of goods or services. The Respondent does not offer any individual content on the website at the Disputed Domain Name. It diverts users to its own website, which is unrelated to the Complainant and the Complainant’s services.
The Complainant and its trade marks are well known and the Respondent would have been aware of the Complainant at the time it registered the Disputed Domain Name. The Disputed Domain Name is being used to attract Internet users to the Respondent’s competing website, to disrupt the Complainant’s business.
The Respondent attempted to acquire money from the Complainant for the Disputed Domain Name (requesting to be paid for time and expenses to date), but did not reply to an offer from the Complainant to pay a price in excess of the Respondent’s registration costs.
The Respondent did not reply to the Complainant’s contentions.
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a Response.
The Respondent’s failure to file a response does not automatically result in a decision in favour of the Complainant (see e.g. Tradewind Media, LLC d/b/a Intopic Media v. Jayson Hahn, WIPO Case No. D2010-1413). However, the Panel may draw appropriate inferences from the Respondent’s default.
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to its trade marks.
The Complainant asserts that it owns the SIX and SIX SWISS EXCHANGE trade marks, and provided evidence of ownership. The Panel accepts that the Complainant owns these trade marks and that the marks are well known. The Disputed Domain Name incorporates the SIX SWISS EXCHANGE trade mark in its entirety (with the addition of a hyphen following “six”). The Panel finds that the additional hyphen does not prevent confusing similarity (see e.g. Chateaux and Country v. SA, Networkcouncil, WIPO Case No. D2011-0325 and the cases cited therein).
The “.com” at the end of the Disputed Domain Name is irrelevant in assessing confusing similarity under the Policy and is thus ignored (see e.g. Arthur Guinness Son & Co.(Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698).
In light of the above, the Complainant succeeds on the first element of the Policy.
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:
- there is no evidence that the Respondent is commonly known by the Disputed Domain Name;
- there is no evidence that the Respondent has any connection with the Complainant’s trade marks and the Complainant has not given the Respondent any permission to use its trade marks;
- the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name. It has registered the Disputed Domain Name to direct Internet users to a commercial website at “www.start-upinvestment.com”, where it appears that the Respondent advertises and sells services that are similar to the Complainant’s services (see e.g. Beachbody, LLC v. Gerard Casazza, WIPO Case No. D2012-0532 and cases cited therein); and
- the Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services. The Panel considers the Respondent was aware of the Complainant and its trade marks when it registered the Disputed Domain Name and acquired the domain name in order to trade off confusion between the Disputed Domain Name and the Complainant’s trade marks.
The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy.
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
Paragraph 4(b) of the Policy enumerates several circumstances that are evidence of registration and use of a domain name in bad faith. Paragraph 4(b)(iv) is particularly relevant here and provides that there is evidence of bad faith where a domain name is “used to intentionally attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of that website or location or of a product or service on that website or location”.
The Panel finds that the Respondent, prior to its registration and use of the Disputed Domain Name, which wholly incorporates both of the Complainant’s well-known trade marks, was likely aware that the Complainant was the owner of the trade marks because of the substantial reputation of both the Complainant and the marks.
The Respondent’s registration of a domain name that wholly incorporates the Complainant’s SIX and SIX SWISS EXCHANGE trade marks, indicates that the Respondent registered the Disputed Domain Name to mislead users into thinking it is some way connected, sponsored or affiliated with the Complainant and its business/products, or that the Respondent’s activities are approved or endorsed by the Complainant.
It appears to the Panel that the Respondent is trading off the Complainant’s substantial reputation. This constitutes bad faith (see e.g. Cynthia Ann Crawford v. Julian S. Garcia, WIPO Case No. D2012-2454 and cases cited therein).
In light of the above, the Panel finds that the Complainant has succeeded on the third element of the Policy.
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 <six-swissexchange.com> be transferred to the Complainant.
John Swinson
Sole Panelist
Date: February 15, 2013