MISSLER SOFTWARE SA v. Jonas Kropf
Claim Number: FA1707001738392
Complainant: MISSLER SOFTWARE SA of Evry, France.
Complainant Representative: Nameshield of Angers, France.
Respondent: Jonas Kropf of Olten, Switzerland.
REGISTRIES and REGISTRARS
Registries: XYZ.COM LLC
Registrars: Uniregistrar Corp
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Mr. Peter Müller, as Examiner.
Complainant submitted: July 5, 2017
Commencement: July 5, 2017
Default Date: July 20, 2017
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.
No multiple Complainants or Respondents and no multiple disputed domain names require dismissal.
Findings of Fact:
Even though the Respondent has defaulted, URS Procedure 1.2.6. requires the 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.
[URS 1.2.6.1.] The registered domain name is identical or confusingly similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
The Complainant provided documentary evidence that it is inter alia registered owner of the EU trademark registration no. 002710077 “TopSolid”, which was registered on June 18, 2003 for various goods and services in classes 9, 16, and 42 (hereinafter referred to as the “TOPSOLID Mark”), as well as documents to show that the trademark is in current use.
The disputed domain name fully incorporates the Complainant’s TOPSOLID Mark and is identical to such mark. It is well established that the specific top level domain name is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant’s trademark and the disputed domain name.
The Examiner finds that the disputed domain name is identical to the TOPSOLID Mark and that the Complainant satisfied the elements of URS Procedure 1.2.6.1.
[URS 1.2.6.2.] The Registrant has no legitimate right or interest to the disputed domain name.
and
[URS 1.2.6.3.] The disputed domain name was registered and is being used in bad faith.
URS Procedure 8.5 states: “The URS is not intended for use in any proceedings with open questions of fact, but only clear cases of trademark abuse.”
URS Procedure 8.6 states: “If the Examiner finds that any of the standards have not been satisfied, then the Examiner shall deny the relief requested, thereby terminating the URS proceeding without prejudice to the Complainant to proceed with an action in court of competent jurisdiction or under the UDRP.”
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as it is not related to the Complainant’s business, as the Complainant doesn’t carry out any activity or business with the Respondent, as the Respondent is not commonly known by the disputed domain name, and as the Respondent offers the disputed domain name for sale, which clearly proves that the Respondent is seeking to make a financial profit on the Complainant's goodwill and reputation. With regard to bad faith, the Complainant contends that the domain name is identical to the TOPSOLID Mark, that such mark has been registered in the Trademark Clearinghouse and that the Respondent offered the disputed domain name for sale for “an excessive price.”
The disputed domain name was registered on June 1, 2017. The registrar’s claims notification period, in which the registrar provided notice to potential domain name registrants that the domain they are seeking to register matches a label in the Trademark Clearinghouse, ended on September 2, 2014. Therefore, the Respondent has not, as contested by the Complainant, received knowledge of the TOPSOLID Mark by virtue of the Complainant’s registration of the TOPSOLID Mark in the TMCH.
The Complainant has not provided any information with regard to its scope of business activity, especially in Switzerland, where the Respondent is located. Furthermore, the disputed domain name is a combination of the generic words “top” and “solid” and the Complainant provided no evidence that the Respondent deliberately targets its trademark.
In sum, after carefully considering the evidence, the Examiner finds that the evidence is not clear and convincing that the Respondent has no rights or legitimate interests in the disputed domain name and that the disputed domain name has been registered is being used in bad faith. Given that the URS is not intended for use in any proceedings with open questions of fact, but only clear cases of trademark abuse, the Examiner finds that the Complainant has not satisfied the elements of URS Procedure 1.2.6.2. and 1.2.6.3.
No abuse or material falsehood.
After reviewing the Complainant’s submissions, the Examiner determines that the Complainant has NOT demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be RETURNED to the control of Respondent.
<topsolid.xyz>
Mr. Peter Müller, Examiner
Dated: July 25, 2017
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