The Complainant is Audi AG, Ingolstadt, Germany, represented by HK2 Rechtsanwälte, United States of America.
The Respondent is Sabri Hammad, Boca Raton, Florida, United States of America.
2. The Domain Name and Registrar
The disputed domain name <audihybrid.com> is registered with Dotster, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 14, 2007. On May 15, 2007, the Center transmitted by email to Dotster, Inc. a request for registrar verification in connection with the domain name at issue. On May 15, 2007, Dotster, Inc. 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”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 23, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 12, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 15, 2007.
The Center appointed Fleur Hinton as the sole panelist in this matter on June 21, 2007. 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.
4. Factual Background
The Complainant is Audi AG, the world famous German car maunufacturer. Its cars are sold throughout the world. It is the owner of many trademarks incorporating the trademark AUDI in countries including Germany, other European countries, the United States of America, various Asian countries and Australia. It also has a number of domain name registrations for domain names incorporating AUDI, including <audi.de>, <audi.com>, <audi.cn>, and <audi.ch> to name a few.
The Audi group has 52,000 employees worldwide and in 2005 its annual group turnover was in excess of E26,500 million. It manufactured around 811,000 cars in 2005. In Interbrand’s ranking of top global brands in 2006, the trademark AUDI was ranked 746.
The disputed domain name <audihybrid.com> is registered in the name of Sabri Hammad of Boca Raton, Florida in the United States of America. It has been registered since 2000.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the Respondent’s domain name <audihybrid.com> is identical or confusingly similar to the trademark AUDI in which the Complainant has rights. It has provided evidence of the trademarks which the Complainant owns, its turnover figures for 2005 and a copy of the Interbrand global survey in which the AUDI trademark was ranked and information on the domain names owned by the Complainant incorporating AUDI.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. It contends that the Complainant in a case such as this need only establish a prima facie case that the Respondent does not have a right or legitimate interest in the domain name in order to shift the burden of proof to the Respondent.
The Complainant states that there is no bona fide offer of goods or services on the website corresponding to the domain name <audihybrid.com>. Further, the Complainant provides evidence of the home page at the website <sabrico.com> which shows that the Respondent is offering the disputed domain name for sale together with domain names incorporating trademarks of other well-known manufacturers of cars. On this basis, the Complainant alleges that the Respondent in trafficking in domain names.
Further, the Complainant notes that the Respondent is not known by the name “audi” or “audihybrid” in his trading. The Complainant states that it monitors applications for the trademark AUDI throughout the world and would therefore be aware of any such applications by the Respondent. It points out further that the Respondent’s own name bears no similarity whatsoever to the trademark AUDI which could in any way explain his choice of it for a trading style.
The Complainant argues that the domain name <audihybrid> was registered and used in bad faith. This is on the basis that the Respondent is offering the disputed domain name for sale together with other domain names incorporating a famous trademark together with the descriptive term “hybrid”. The Complainant has provided the text of an email exchange initiated by an email it received from the Respondent on April 25, 2007. In that exchange, the Respondent advised the Complainant that he owned the disputed domain name and offered to sell it to the Complainant for $US100,000.00.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to satisfy the requirements of the URDP policy and have a disputed domain name transferred or cancelled, the Complainant must show that the disputed domain name is identical or confusingly similar to its trademark, that the Respondent has no right or legitimate interest in it, and that the Respondent registered and uses the domain name in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name wholly incorporates and is confusingly similar to the Complainant’s trademark AUDI. The Panel further notes that the trademark AUDI is a famous trademark and finds that the addition of the descriptive term “hybrid” does not suffice to distinguish it from AUDI.
Although not a requirement for a finding of confusing similarity under the first element of the Policy, the Panel notes that in a number of previous UDRP decisions, findings have been made that the AUDI trademark is both distinctive and famous. These are Audi AG v. The data in Bulkregister.com’s WHOIS database isp, WIPO Case No. D2006-1055 (involving the domain name <audicanada.com>); Audi AG v. Dr Alireza Fahimipour, WIPO Case No. DIR2006-0003; Audi AG v. This Domain Name May Be For Sale Legend.name, WIPO Case No. D2006-1473 (involving the domain name <a6.net>); and Audi AG v. Emir Ulu,WIPO Case No. D2005-1030 (involving the domain names <audi-händler.com>, <audi-münchen.com>, <audi-zubehör.com> and <audizubehör.com.>. meaning respectively “Audidealer”, “Audi-Munich”, and “Audi accessories”.
B. Rights or Legitimate Interests
The Panel finds that it is only necessary for the Complainant to establish a prima facie case that the Respondent has no right or legitimate interest before the onus shifts to the Respondent to demonstrate that it does have such a right. This was established in the case of Europay International S. A. v. Eurocard.com, WIPO Case No D2000-0173.
The Panel could find no website at the address “www.audihybrid.com”. The Panel also visited the website “www.sabico.com” but found only a picture (presumably of the Respondent) and a statement inviting email. There is nothing to indicate that the Respondent has any connection with a trademark AUDIHYBRID. There is no indication that the Respondent is offering any goods or services on the website. The Respondent has not made any submissions as to his rights or legitimate interests. Therefore, although the situation at the date of this decision is slightly different from that which the Complainant describes, the Panel finds that the Respondent has no right or legitimate interest in the disputed domain name.
C. Registered and Used in Bad Faith
The trademark AUDI is a famous trademark. It is difficult to imagine that the Respondent was not aware of its significance in view of the fact that the Complainant’s evidence shows that the Respondent was, at least at one time, offering domain names for sale including other famous trademarks as well as the disputed domain name. The term “hybrid” is apt to describe inter alia a type of automobile, which utilizes alternate fuel sources. The Complainant is in the automobile production business.
The actions of the Respondent in registering these domain names have the predictable result that the owner of the AUDI trademark is unable to register the particular domain name for itself. The Respondent’s offer to sell the disputed domain to the Complainant for USD 100,000.00 suggests that the Respondent was likely and is now (at the very least) aware of the Complainant’s mark and its potential interest in the disputed domain name. Given the fame of the Complainant’s mark, it is difficult to conceive of any use of the disputed domain name by the Respondent that would not be in breach of the Policy.
The Panel therefore finds that the Respondent registered and used the domain name <audihydrid.com> in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <audihybrid.com> be transferred to the Complainant.
Fleur Hinton Sole Panelist
Dated: July 5, 2007
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