The Complainant is M. & B. Marchi e Brevetti Srl of Fabriano, Italy, internally represented.
The Respondent is Elshan Quliyev of Baku, Azerbaijan.
The disputed domain name <ariston-az.com> is registered with Tucows Inc. (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 4, 2017. On December 5, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 5, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 5, 2018.
The Center appointed Kaya Köklü as the sole panelist in this matter on January 29, 2018. 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 an Italian-based company with a long history in the development and production of all kind of water heaters.
The Complainant owns a various word and figurative ARISTON trademark registrations around the world, including in Azerbaijan. According to the provided documents in the case file, the Complainant is inter alia the registered owner of the International Trademark Registrations No. 684565 (registered on August 19, 1997) and No. 804891 (registered on April7, 2003), both covering various kinds of heating devices in class 11.
The Complainant also owns and operates various domain names which incorporate the ARISTON trademark, such as <ariston.com>.
The Respondent is an individual located in Baku, Azerbaijan.
The disputed domain name was registered on December 1, 2010.
The disputed domain name resolves to an active website in the Azeri language, which is used for offering various kinds of ARISTON water heaters. The Complainant's screenshot as provided in the case file show that the Respondent prominently uses the ARISTON figurative trademark to promote its services without publishing any visible disclaimer describing the non-existent relationship between the Parties.
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its ARISTON trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link with the Complainant .
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been well aware of the Complainant's ARISTON trademark, when registering the disputed domain name, particularly as the Respondent prominently uses the Complainant word and figurative ARISTON trademarks on the website linked to the disputed domain name without any disclosure of the missing relationship between the Complainant and the Respondent.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint's contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") and, where appropriate, will decide consistent with the WIPO Overview 3.0.
The Panel finds that the Complainant has registered trademark rights in the mark ARISTON by virtue of various longstanding trademark registrations, including trademark registrations covering protection not only in Azerbaijan.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant's registered ARISTON trademarks, as it fully incorporates the Complainant's trademark. The mere addition of the abbreviation "az" for Azerbaijan does in view of the Panel not serve to distinguish the disputed domain name from the Complainant's registered ARISTON trademarks.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's trademark ARISTON in a confusingly similar way within the disputed domain name.
There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name.
Particularly, the Panel is convinced that the Respondent cannot be assessed as a legitimate distributor for the Complainant's products in light of Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 ("Oki Data") and thus is not entitled to use the disputed domain name accordingly. The criteria as set forth in Oki Data are apparently not fulfilled in the present case. The Panel particularly notes that the Respondent's website which is linked to the disputed domain name does not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus creating the false impression that the Respondent might be an official and authorized distributor for the Complainant's products in Azerbaijan. In view of the Panel, this takes the Respondent out of the Oki Data safe harbour for purposes of the second element.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel notes the reputation and wide recognition of the Complainant's trademark ARISTON in the field of water heaters. The Panel is convinced that the Respondent must have had this well-known trademark in mind when registering the disputed domain name.
It even appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its water heater products. After having reviewed the Complainant's screenshot of the website linked to the disputed domain name, the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic to its own business. The Panel notes that the Respondent has not published any visible disclaimer on the website linked to the disputed domain name to explain that there is no existing relationship between the Respondent and the Complainant. Quite the opposite, the design of the website linked to the disputed domain name and the prominent use of the Complainant's word and figurative ARISTON trademark is sufficient evidence in view of the Panel that the Respondent intentionally tries to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's ARISTON trademark as to the source, sponsorship, affiliation or endorsement of its website.
In any case, in view of the Panel, the Respondent does not meet the Oki Data principles on various elements, namely lack of a disclaimer and misrepresenting itself as the trademark owner by prominently using the Complainant's logo and figurative trademark on its website.
The Panel therefore concludes that the disputed domain name was registered and is used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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 <ariston-az.com> be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: February 12, 2018