Roofoods Ltd v. Henri Luecke
Claim Number: FA1804001781112
Complainant: Roofoods Ltd. of London, United Kingdom.
Complainant Representative: Lewis Silkin LLP of London, United Kingdom.
Respondent: Henri Luecke of Hamburg, Germany.
REGISTRIES and REGISTRARS
Registries: Binky Moon, LLC
Registrars: NameCheap, Inc.
The undersigned certifies that he or she 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.
Peter Müller, as Examiner.
Complainant submitted: April 10, 2018
Commencement: April 11, 2018
Default Date: April 26, 2018
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").
The Complainant requests that the disputed 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. 015750763 DELIVEROO, which was registered on January 10, 2017 covering various goods and services in classes 9, 35, 39, and 43 as well as documents to show that the trademark is in current use.
The disputed domain name fully incorporates the Complainant’s DELIVEROO 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 Complainant’s DELIVEROO Mark and that the Complainant satisfied the elements of URS Procedure 1.2.6.1.
[1.2.6.2.] The Respondent has no legitimate right or interest to the disputed domain name.
The Complainant argues that the Respondent is not authorized by the Complainant to use the DELIVEROO Mark and has no rights or legitimate interests in the disputed domain name. The Respondent did not deny these assertions in any way and therefore failed to prove any rights or legitimate interests in the disputed domain name. In fact, the disputed domain name is used in connection with a website providing “Sponsored Listings,” i.e. advertising links to third parties’ websites.
The Examiner finds that Respondent has no rights to or legitimate interests in the disputed domain name and that the Complainant satisfied the elements of URS Procedure 1.2.6.2.
[1.2.6.3.] The disputed domain name was registered and is being used in bad faith.
The Complainant states that the DELIVEROO Mark is famous, that the disputed domain name loads a pay-per-click advertising page through which the Respondent can earn revenue by attracting website traffic as a result the fame of the Complainant’s DELIVEROO Mark, that the gTLD “.delivery” refers to the service for which the Complainant is well-known and accordingly there is a high likelihood of confusion and association between the disputed domain name and the Complainant’s business, that there is no good faith use to which the disputed domain name could be put, that the Respondent is using the Complainant’s trade mark, goodwill and reputation for its own purposes and for profit, that the Respondent could use the disputed domain name for e-mail or other misleading purposes, imitating the Complainant and its business, that the Respondent has listed the disputed domain name for sale for USD $8,728, far exceeding out of pocket expenses, and that Respondent has registered other domain names containing famous brands, including <armani.shoes> and <airmax.shoes>, demonstrating a pattern of conduct of taking advantage of third party intellectual property rights.
The Examiner accepts that the Respondent was most likely aware of the Complainant’s highly distinctive DELIVEROO Mark at the time of the registration of the disputed domain name and therefore registered the disputed domain name in bad faith. Such finding is supported by the fact that the gTLD of the disputed domain name clearly refers to the Complainant’s core business. As to bad faith use, by fully incorporating the DELIVEROO Mark into the disputed domain name and by using the website at such domain name as a parking website providing links to third parties, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to its own for the purpose of earning click-through revenues from Internet users searching for the Complainant's website as set out in URS Procedure 1.2.6.3.d.
The Examiner finds that the disputed domain name was registered and is being used in bad faith and that the Complainant satisfied the elements of URS Procedure 1.2.6.3.
No abuse or material falsehood.
After reviewing the Complainant’s submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration.
<deliveroo.delivery>
Peter Müller, Examiner
Dated: May 1, 2018
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