DECISION

 

RB TOPCO SAGL v. Felix Dresn

Claim Number: FA2410002118613

 

PARTIES

Complainant is RB TOPCO SAGL ("Complainant"), represented by Sophie Edbrooke of Gerben Perrott, PLLC, District of Columbia, USA. Respondent is Felix Dresn ("Respondent"), France.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ragandbonedeutschland.org>, ('the Domain Name') registered with 1API GmbH.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 1, 2024; Forum received payment on October 1, 2024.

 

On October 2, 2024, 1API GmbH confirmed by e-mail to Forum that the <ragandbonedeutschland.org> Domain Name is registered with 1API GmbH and that Respondent is the current registrant of the name. 1API GmbH has verified that Respondent is bound by the 1API GmbH registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

 

On October 2, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 22, 2024 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@ragandbonedeutschland.org. Also on October 2, 2024, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.

 

Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 23, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant's contentions can be summarised as follows:

 

The Complainant is the owner of the trade mark RAG & BONE, registered, inter alia, in the USA for retail services and leather goods since 2010.

 

The Domain Name registered by the Respondent in 2024 is confusingly similar to the Complainant's mark, containing it in its entirety, merely converting the ampersand in the mark which cannot be expressed in a domain name to the equivalent word 'and' and adding the generic geographical term 'deutscheland' meaning Germanmy in English and the .org gTLD.

 

Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant to use the Complainant's mark. The Domain Name has been used to purport to offer the Complainant's goods and services using the Complainant's trade mark in its logo form as a masthead and currently points to a warning that the site has been used for deceptive purposes. Since Internet users were likely to be duped into believing the Respondent's site is official this is not legitimate. It is registration and use in bad faith confusing Internet users for commercial gain and disrupting the Complainant's business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the trade mark RAG & BONE, registered, inter alia, in the USA for retail services and leather goods since 2010.

 

The Domain Name registered by the Respondent in 2024 bears a warning that is has been used for deceptive purposes.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

 

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

 

(1)       the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2)       Respondent has no rights or legitimate interests in respect of the domain name; and

(3)       the domain name has been registered and is being used in bad faith.

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").

 

Identical and/or Confusingly Similar

The Domain Name consists of a version of the Complainant's RAG & BONE mark (which is registered in USA for retail and leather goods since 2010) with the ampersand replaced by the word 'and', with the generic geographical term 'deutscheland' meaning Germany in English and the gTLD .org added.

 

The Panel agrees that the substitution of an ampersand with the word 'and' does not prevent confusing similarity between a complainant's mark and a domain name. See Villeroy & Boch AGVi v. Whois Data Shield/Hong Kong Names LLC, WIPO Case No. D2008-1300, where the ampersand symbol was replaced with the word "and" in the domain name <villeroyandboch.com>, but did not affect the finding of confusingly similar to the trademark VILLEROY & BOCH.  

 

Previous panels have found confusing similarity when a respondent merely adds a generic term including a geographical term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel finds that the addition of the generic geographical term 'Deutscheland' meaning Germany in English does not prevent confusing similarity between the Domain Name and the Complainant's mark.

 

The gTLD .org does not serve to distinguish the Domain Name from the Complainant's mark. See Red Hat Inc v Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).

 

The web site attached to the Domain Name features a warning notice that the site has been used for deceptive purposes. The Complainant has not presented a screenshot of the original site said to mimic the Complainant's web site. Under Policy 4(c)(i) and (iii), the use of a disputed domain name in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) ("On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).").

 

The Respondent has not answered this Complaint and has not rebutted the prima face case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Respondent has used the Domain Name to engage in phishing. The use of a disputed domain name in furtherance of a phishing scheme is considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii)."). 

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Paragraph 4(b)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <ragandbonedeutschland.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: October 23, 2024