Hansgrohe SE v. Farshad Bastani / HANSGROHE
Claim Number: FA2012001924133
Complainant is Hansgrohe SE (“Complainant”), represented by Thomas Whiteley, Luxembourg. Respondent is Farshad Bastani / HANSGROHE (“Respondent”), Afghanistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hansgrohe-iran.com>, registered with OnlineNIC, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Michael A. Albert as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 8, 2020; the Forum received payment on December 8, 2020.
On December 8, 2020, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <hansgrohe-iran.com> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, Inc. 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 December 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 2020 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@hansgrohe-iran.com. Also on December 10, 2020, 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.
A timely Response was received and determined to be complete on December 22, 2020.
On December 23, 2020, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Michael A. Albert as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the HANSGROHE mark in connection with sanitation products, such as showers and faucets. Complainant has rights in the HANSGROHE mark through its registration of the mark with the European Union Office for Harmonization in the Internal Market (“EUIPO” or “OHIM”).
Respondent lacks rights and legitimate interest in the <hansgrohe-iran.com> domain name, as Respondent is not connected or affiliated with the Complainant.
Respondent registered and uses the <hansgrohe-iran.com> domain name in bad faith. Specifically, Respondent falsely claims to be linked to Complainant and has not provided any legitimate contact information.
B. Respondent
Respondent and agents of Complainant had discussions in 2014-2015 about the disputed domain name as a vehicle to introduce Complainant’s products to the Islamic Republic of Iran. These agreements were disrupted by the U.S. presidential election and the reintroduction of sanctions against Iran, barring further progress on Respondent’s work to introduce Complainant’s products.
Respondent registered and uses the <hansgrohe-iran.com> domain name in good faith in connection with those prior agreements.
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted 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.
Complainant claims rights in the HANSGROHE mark through its registration of the mark with the European Union Office for Harmonization in the Integral Market (“EUIPO” or “OHIM”). Generally, registering a mark with the EUIPO or OHIM is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (“Registration of a mark with the EUIPO, a government agency, sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i).”); see also NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (“Registration with the OHIM is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i).”). While Complainant has not provided this Panel with evidence that clearly demonstrates its ownership of the alleged trademark registrations, the Panel will assume, for present purposes, that Complainant does own such trademark rights, inasmuch as its allegations are facially plausible and Respondent does not deny them. Further, inasmuch as the disputed domain name differs only in the addition of a geographic descriptor to the mark in question – a distinction routinely considered insufficient under the Policy to avoid confusion – Complainant has shown that the domain name is confusingly similar to a mark in which Complainant has rights.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), at which point the burden shifts to Respondent to show that it does have rights or legitimate interests. Here, Complainant only alleges in cursory fashion that Respondent is not affiliated with Complainant, but does not provide any details, evidence, or arguments. On this minimal record, the Panel finds that Complainant has not satisfied its burden of making a prima facie case that Respondent lacks rights or legitimate interests with respect to the domain name under Paragraph 4(a)(ii) of the Policy. Respondent claims that its use of the disputed domain name is consistent with prior agreements. Complainant fails to address these purported agreements or otherwise provide sufficient factual background or evidence to refute Respondent’s contention. While the evidence a Complainant must come forward with to prove a prima facie case is, admittedly, limited in scope, Complainant has not in this case even met that lower standard of production, and accordingly the Panel cannot find that Complainant has met its burden under Paragraph 4(a)(ii).
As discussed above, Complainant has failed to meet its burden to show that Respondent lacks rights or legitimate interest in the disputed domain name under Policy ¶ 4(a)(ii) and so has likewise not established bad faith registration. See Record Connect, Inc. v. Chung Kit Lam / La-Fame Corporation, FA 1693876 (Forum Nov. 3, 2016) (finding that the issue of bad faith registration and use was moot once the panel found the respondent had rights or legitimate interests in the disputed domain name); see also Sheet Labels, Inc. v. Harnett, Andy, FA 1701423 (Forum Jan. 4, 2017) (finding that because the respondent had rights and legitimate interests in the disputed domain name, its registration of the domain name was not in bad faith).
Indeed, just as with regard to the issue of rights or legitimate interests, Complainant’s allegations with regard to bad faith are cursory at best. Complainant cites allegedly false claims of affiliation and the lack of legitimate contact details, but does not back those assertions up with any detail, analysis, evidence, or argument.
Having failed to establish the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <hansgrohe-iran.com> domain name REMAIN WITH Respondent.
Michael A. Albert, Panelist
Dated: January 6, 2021
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