WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dr. Ing. h.c. F. Porsche AG v. IT Consult Co. Ltd., Domain Administrator and Whois privacy services provided by DomainProtect
Case No. D2012-2024
1. The Parties
The Complainant is Dr. Ing. h.c. F. Porsche AG of Stuttgart, Germany, represented by Lichtenstein, Körner & Partners, Germany.
The Respondents are IT Consult Co. Ltd., Domain Administrator of St. Petersburg, Russian Federation, represented by E. Khoudiakova, Russian Federation (“Second Respondent”), and Whois privacy services provided by DomainProtect, Saint-Petersburg, Russian Federation (“First Respondent”).
2. The Domain Name and Registrar
The disputed domain name <porscheracing.com> is registered with NICREG LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 12, 2012. On October 12, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 19, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. On October 22, 2012, the Center sent an email communication to the Complainant, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 23, 2012.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondents of the Complaint, and the proceedings commenced on October 24, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 13, 2012.
The First Respondent sent a message to the Center on November 6, 2012, by which it requested not to be held as a respondent in this proceeding. The Second Respondent filed its Response with the Center on November 13, 2012.
On November 14, 2012, the Complainant filed a supplemental submission. This was followed by the Second Respondent, who filed a response to the Complainant’s supplemental submission on November 20, 2012. The Panel notes that the Rules contain no express provision for supplementary filings by either party, except in response to a deficiency notification or if requested by the Center or by the Panel. Paragraphs 10 and 12 of the Rules grant the Panel sole discretion to determine the admissibility of supplementary filings (including further statements or documents) received from either party. Taking this into account, for reasons of due process and equality of treatment of the parties, and in order to provide each of them with a reasonable opportunity to present their cases, the Panel has determined to consider and admit the two supplementary filings in rendering his decision.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 26, 2012. 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 the maker of the well-known “Porsche” sports cars and has used "Porsche" as its trade name for more than seventy years.
The Complainant is the owner of the following trademark registrations (the “PORSCHE trademark”):
- German Trademark PORSCHE, with registration No. 643,195, registered on August 26, 1953 for goods in International Classes 07, 08 and 12;
- International trademark PORSCHE, with registration No. lR 562,572, registered on October 27, 1990, and protected in the Russian Federation, registered for goods and services in International Classes 12 and 42;
- International trademark PORSCHE, with registration No.IR 179,928, registered on October 8, 1954 for goods in International Classes 07, 08 and 12;
- International trademark PORSCHE, with registration No.IR 640,976, registered on July 13, 1995 for services in International Classes 36, 37, 39 and 42;
- International trademark PORSCHE, with registration No. 459,706, registered on February 24, 1981, protected in the Russian Federation, registered for services in International Classes 36, 37, 39 and 42;
- United States trademark PORSCHE, with registration No. 0618933, registered on January 10, 1956 for goods in International Class 12; and
- European Community trademark PORSCHE, with registration No. CTM 000073098, registered on December 12, 2000 for goods and services in International Classes 03, 08, 09, 12, 14, 16, 18, 21, 24, 25, 28, 34, 36, 37, 39, 42.
The Complainant’s official website is located at “www.porsche.com”.
The disputed domain name was registered on January 10, 2007.
5. Parties’ Contentions
A. Complainant
According to the Complainant, the First Respondent is a business entity with no proper physical address, which specialises in cybersquatting. The disputed domain name has always been used for a parking website featuring pay-per-click links mainly related to the Complainant and its competitors and containing an offer for sale of the disputed domain name.
The Complainant contends that the disputed domain name is confusingly similar to the Complainant's trade name and to the PORSCHE trademark. The addition of the word "racing" suggests that the associated website is operated by the Complainant and is dedicated to its car racing activities.
In the Complainant’s submission, the First Respondent has no rights or legitimate interests in the disputed domain name, as no preparations have taken place for the use of the disputed domain name with a bona fide offering of goods or services, and there has never been any business relationship between the parties. The First Respondent is not commonly known by the disputed domain name, and is not making any noncommercial use of it other than associating it to a parking website where the disputed domain name is offered for sale.
The Complainant submits that the First Respondent has registered and used the disputed domain name in bad faith. It has registered the disputed domain name for the purpose of selling it to the Complainant for a valuable consideration in excess of its documented out-of-pocket costs directly related to the disputed domain name, and the First Respondent also earns pay-per-click commissions by taking part in a parking websites scheme.
In its amendment to the Complaint, the Complainant has added the Second Respondent as an additional Respondent and has clarified that all its contentions on the issues of rights and legitimate interests and bad faith apply also to the Second Respondent. The Complainant has also made the additional contentions that follow:
The Complainant claims that the First Respondent is an identity cloaking service department of the Registrar, and has replaced itself by the Second Respondent in the WhoIs records for the disputed domain name only after the notification of the Complaint. According to the Complainant, such replacement is common in cases where registrars' cloaking services are involved. This change of registrants is part of a conspiracy between the First Respondent and its cybersquatter client to impede the enforcement of trademark rights. The Complainant also alleges that the disputed domain name was disconnected after the notification of the Complaint.
The Complainant states that it is unable to find out anything about the background, business activities, or even the existence of the Second Respondent. The name of the Second Respondent could not be more general and descriptive, neither the address nor the other contact details give a clue as to its background. For the Complainant, it appears that the Second Respondent is a fake entity that has been put in place by the real owner of the disputed domain name in order to continue its scheme of identity fraud. There has never been a business relationship between the Complainant and the Second Respondent, and the Second Respondent is not an authorized dealer of Porsche cars.
The Complainant also claims that its contentions with regard to the First Respondent about its lack of rights and legitimate interests and about its bad faith are confirmed by the attempt of the First Respondent to escape jurisdiction by changing names and transferring the disputed domain name to a new registrant after the commencement of the present administrative proceeding.
In its supplemental submission, made after the submission of the response of the Second Respondent, the Complainant has made the following additional contentions:
The use of the disputed domain name for a website featuring pay-per-click advertising and an offer for sale has continued after the purported sale of the disputed domain name.
The purported preparations of a website and the alleged change of ownership have all taken place in the inside sphere of the Respondents, and there is nothing in the outside world to support the Second Respondent's declarations and allegedly self produced documents. The documents submitted by the Second Respondent are dated just days before the filing of the Complaint, which is an unlikely coincidence, and are insufficient to demonstrate preparations for noncommercial use. Self serving documents like these are easily fabricated. No preparations for a "virtual fan club" have been made prior to the present proceedings, and the disputed domain name continues to be disconnected. The purported website contains only an entry page, and the remainder of the website is without content. The Second Respondent makes it clear that it has a commercial interest in the disputed domain name, which is related to the organization and event management of car races. For lack of any genuine content, the Second Respondent has copied copyright protected photos from the lnternet, in particular from the Complainant's website. Therefore, the website is designed to be an advertising platform to advance the business of an event managing agency that seeks to be regarded as officially authorized by the Complainant. This is no legitimate interest and in particular no noncommercial use.
The bad faith of the Second Respondent is confirmed both by the fabrication of documents that are meant to obstruct the present proceedings, by the continued pay-per-click advertising and offering of the disputed domain name for sale until after the purported change of ownership and by the intended creation of a commercial website featuring copyright protected photographs stolen from the Complainant's website where the disputed domain name and the whole appearance of the website are intended to mislead and attract Internet users for commercial gain of the Second Respondent.
B. Respondent
The First Respondent denies the allegations of the Complainant. It alleges that it is not a proper respondent in this proceeding, as it has only provided proxy services to the registrants of the disputed domain name. It alleges that until October 5, 2012, it had provided proxy services to a certain Mr. Podolsky, who was the previous owner of the disputed domain name, and that after that date the First Respondent has started providing the same proxy services to the Second Respondent.
The Second Respondent requests the Panel to deny the remedies requested by the Complainant. It maintains that the disputed domain name is not confusingly similar to the PORSCHE trademark of the Complainant. The word "racing" provides a sufficient differentiation from the trademark, as the car racing activity is quite distinct from car manufacturing business, protected by its trademark registrations. In the current case, the preparations made by the Second Respondent for a legitimate noncommercial and fair use of the disputed domain name for establishing the virtual fan club for the Porsche car racers and their fans are different from offering of any goods or services, and the ownership of the disputed domain name by the Respondent might not create even a likelihood of confusion with the cars manufacturing business of the Complainant. The Complainant cannot deprive the public from the right to express their feedback, opinions and feelings, associated with the cars and to use for this purposes the freely administered web-resources not controlled by the Complainant.
The Second Respondent also submits that it has put a clearly and prominently displayed disclaimer on the main page of it’s website and on all its other pages. The website is now under construction, but this disclaimer would appear as a pop-up window before an Internet user can obtain an access to the website at the disputed domain name. This disclaimer shall be maintained on the permanent basis as long as the Respondent owns the disputed domain name.
The Second Respondent claims that it should be considered as having rights and legitimate interests in the disputed domain name. It has bought the disputed domain name on October 5, 2012 from Mr. Podolsky for the equivalent of USD 500. The disputed domain name was offered for sale for this price as shown by the Complainant.
According to the Second Respondent, the fact that the disputed domain name was disconnected to the Web does not deprive the Respondent from the protection of paragraph 4(c)(i) of the Policy since the Respondent purchased the disputed domain name nineteen days before having been notified of the Complaint. The Policy does not require from the registrant of a domain name to make immediate use of it. The Second Respondent has started preparations for the use of the disputed domain name for the purposes of its non-commercial project, named "PORSCHERACING". On October 8, 2012, the Second Respondent entered into an agreement with V. Ilyin, who represents "Freedom Studio", for the preparation, design and maintenance of the website at the disputed domain name. The website has been placed on a temporary basis at “www.porscheracing.freedom-56.ru”. The Second Respondent has also set up a group in the Russian mostly popular social network "V KONTAKTE" where it has described the mission of its “PORSCHERACING” project and has posted a reference to the website.
The Second Respondent points out that the Complainant does not allege that any contact, in the form of a "cease and desist" letter, or otherwise, was made or attempted with the Second Respondent prior to commencement of this proceeding. The Complainant has delayed the filing of its Complaint and has passively observed the registration and ownership of the disputed domain name by different entities since 2004. According to the Second Respondent, this inaction proves that the Complainant has no interest to protect. The trademark registrations of the Complainant are highly diluted because there are many websites which use the same denomination and concept similar to the one to be employed by the Second Respondent.
The Second Respondent submits that the disputed domain name should not be considered as having been registered and being used in bad faith. The Second Respondent denies that it has attempted to attract, for commercial gain, Internet users to Respondent's website or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site or location or of a product or service on Respondent's web site or location. The automatically generated links on the webpage are solely attributable to the previous holder of the disputed domain name, and were immediately deleted after its purchase. The public offer to sell the disputed domain name is not covered by definition of bad faith, set forth in paragraph 4(b)(i) of the Policy, unless the Complainant and it’s competitors were specifically and intentionally put on the target list, which is denied. The Second Respondent has never intended to sell the disputed domain name to the Complainant or to its competitors. The Complainant owns no trademark registration for International Class 41 for entertainment and sport activities, which excludes any unfair competition between the Second Respondent and the Complainant.
In its response to the Complainant’s supplementary submission, the Second Respondent has repeated that the Complainant did not comply with the pre-trial communication requirements on serving the domain name owner with a cease-and-desist letter. The Second Respondent also states that it has not used robots.txt and has deleted the offer for sale of the disputed domain name shortly after its purchase. The previous domain name owner had not monitored and controlled the automatically generated content on his website at the disputed domain name. In relation to the website in the process of creation, the Second Respondent alleges that the cars photos put on it were not stolen from the website of the Complainant, but the web designer took them from public sources.
6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), a complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the respondent has registered and is using the disputed domain name in bad faith.
A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the PORSCHE trademark, registered for the territories of various countries around the world, including the Russian Federation. This trademark consists of the distinctive word element “Porsche”, and it has acquired wide popularity around the world, particularly in relation to sports cars.
For the purpose of assessing identity or confusing similarity under the Policy, paragraph 4(a)(i) it is widely acknowledged that the top level gTLD domain suffix may in appropriate circumstances be ignored. In this case the relevant part of the disputed domain name is its “porscheracing” section. The first part of this section contains the element “porsche”, which is easily distinguished as being identical to the Complainant’s well-known PORSCHE trademark. The second part of this section is the element “racing”, which in the Panel’s view is descriptive of racing activities. The Complainant is a well known manufacturer of sports cars, so Internet users can easily have the impression that the disputed domain name is related to car racing activities with cars made by the Complainant, and thus associate the disputed domain name with the PORSCHE trademark of the Complainant. As discussed in paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (the “WIPO Overview 2.0”), the addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity if the incorporated trademark constitutes the dominant or principal component of the domain name.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Policy requires a complainant to make at least a prima facie showing that the respondent has no rights or legitimate interests in the disputed domain name. Once the complainant makes such a showing, the respondent has to provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the complainant to establish by a preponderance of the evidence that the respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview 2.0.
The Complainant submits that the Respondents are not associated with the Complainant in any way, have never sought or received authorization to use the Complainant's PORSCHE trademark, and are not commonly known as "PORSCHE". The Complainant also contends that the Respondents have not made any legitimate noncommercial use of the disputed domain name, which is only used for a website containing pay-per-click links and an offer for sale of the disputed domain name. The Complainant points out that the Respondents have not provided any evidence about the background, business activities, or even the existence of the Second Respondent, whose name is general and descriptive. From these circumstances the Complainant reaches the conclusion that the Second Respondent is a fake entity that has been put in place by the real owner of the disputed domain name in order to continue its scheme of identity fraud, and that the First Respondent has attempted to escape jurisdiction by changing names and transferring the disputed domain name to a new registrant after the commencement of the present administrative proceeding. These allegations may be regarded as sufficient to sustain the required prima facie showing that the Respondents lack rights or legitimate interests in the disputed domain name.
The First Respondent does not contend that it has rights or legitimate interests in the disputed domain name. The Second Respondent alleges to have commenced preparations for a legitimate noncommercial use of the disputed domain name through the setting up of a virtual fan website dedicated to the cars manufactured by the Complainant, and provides a copy of a service agreement for the preparation of a website allegedly to be used in association with the disputed domain name.
As discussed in paragraph 2.5 of the WIPO Overview 2.0, the registrant of an active and noncommercial fan site may have rights and legitimate interests in a domain name that includes the complainant's trademark. The site should be actually in use, clearly distinctive from any official site, and noncommercial in nature. Panels have found that a claimed fan site which includes pay-per-click links or automated advertising would not normally be regarded as a legitimate noncommercial site.
Taking the above into account, and having considered all the evidence before it, the Panel is not convinced by the allegations of the Second Respondent. The latter has not submitted any particular information or documents about the existence of the alleged fan club and of its members, or indeed of any actual activities carried out by such fan club. The website allegedly in the process of creation does not provide any information about the above either. It has no genuine content that would evidence any real activities carried out by the alleged fan club or by the members of such a club. The name of the Second Respondent does not suggest any such activities either. It is a plain generic name of no distinctiveness and of no relation to car racing, and it is unclear why a commercial entity (the legal form of the Second Respondent appears to be a limited liability company) would involve itself in a noncommercial activity that allegedly generates no profit. This is even more so taking into account that the Second Respondent has not provided any evidence about its registration as a company, about its actual existence and business activities. On the other hand, event management services as allegedly offered on the website in the process of creation are normally a business activity that is carried for profit, which is not in line with the Second Respondent’s allegation that it is carrying out a noncommercial activity.
As evident from the unsuccessful attempts of the Center to deliver the notification for the commencement of the administrative proceeding to the Second Respondent, its physical address is non-existent, and its email address was not active until the submission of its response in this proceeding. These circumstances are not in support of a finding that the Second Respondent itself carries any real activity either.
To sum up, the Second Respondent has not proven that it has carried out any legitimate noncommercial activity that could give rise to rights or legitimate interests in the disputed domain name, and the First Respondent does not even claim to have such rights or legitimate interests. Not having proven the actual carrying out of any genuine noncommercial activity, the Second Respondent cannot rely on the principles for the protection of the right of free speech either.
Therefore, and in the lack of any contrary evidence, the Panel finds that the Respondents do not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on the holder’s website or location.
The Complainant argues that the Respondents have registered and used the disputed domain name in bad faith with the intent to extract an undue profit by misleading and attracting Internet users to the website at the disputed domain name and then either switching them to other websites through pay-per-click links that generate sales commissions, or offering them to sell the disputed domain name, or - in view of the Second Respondent’s purported website in the process of creation - by offering them event management services. In response, the Respondents have put forward a number of arguments in their defense, which the Panel will discuss in turn.
Firstly, the Second Respondent takes the position that all actions related to the disputed domain name prior to its alleged transfer to the Second Respondent are solely attributable to the previous owner – a Mr. Podolsky. In the Panel’s view, while it is generally true that each person bears liability only for his or her own actions, in order to rely on this principle in the present proceeding, the Panel would have welcomed that the Respondents, who have made submissions in this matter, would have demonstrated by evidence that is not under their sole control that they have no relation to the previous owner and that an effective change of ownership of the disputed domain name has actually taken place. In the present case, the First Respondent admits that it has provided privacy services to the owners of the disputed domain name since its registration. This effectively means that the First Respondent has always had certain relation with the owner of the disputed domain name. Due to the nature of privacy services, in which the beneficial owner is unknown, the entity registered as owner of a domain name accepts to bear the risk vis-à-vis third persons for the actions related to the registration and use of the domain name, and in this Panel’s view cannot avoid liability for such actions simply by claiming that the real owner is a different person. This may be so in the internal relations between a privacy services provider and its client, but for the outside world the registered holder of the domain name is accountable for the actions related to the registration and use of the domain name. Also, the First Respondent has not provided any independent evidence about the actual existence of the alleged previous owner of the disputed domain name, the period during which he was allegedly the owner of the disputed domain name, and about the nature and duration of its relations with the First Respondent. For these reasons, the Panel finds that the First Respondent is responsible for the actions related to the registration and use of the disputed domain name. As to the Second Respondent, it has not taken any measures to make public its alleged acquisition of the disputed domain name prior to the dispute. Thus, it has made it impossible to distinguish between the conduct of any alleged previous owners of the disputed domain name and its own actions, and has responsibility for the actions of any alleged previous owners of the disputed domain name related to the registration and use of the latter. For these reasons, the Panel finds that the Second Respondent is also responsible for the actions related to the registration and use of the disputed domain name, and that it is not possible to distinguish between the conduct of the First Respondent and that of the Second Respondent for the purposes of this proceeding.
The Respondents have not contested that the disputed domain name was until recently used for a parking website containing pay-per-click links and an offer for sale of the disputed domain name. The Second Respondent has itself referred to the purported website in creation, which offers organization and event management services for car races, and, as discussed in relation to the issue of rights or legitimate interest, it has not been established that this activity is being carried out not for profit. This leads the Panel to the conclusion that the disputed domain name has been used for commercial gain, and that the Respondents continue to have the intention to use it for such purpose.
The Second Respondent has alleged that it has put a disclaimer of any links with the Complainant on its website in the process of creation. As discussed in paragraph 3.5 of the WIPO Overview 2.0, the existence of a disclaimer on the website associated to the disputed domain name cannot by itself cure bad faith, when bad faith has been established by other factors. This is typically explained with reference to the probability of Internet user "initial interest confusion" - by the time such user reaches and reads any disclaimer under the domain name, any registrant objective of attracting visitors for financial advantage to its website through use of the trademark in the domain name will generally have been achieved. In addition to this, the disclaimer in the present case is put only on the website at the address “www.porscheracing.freedom-56.ru”, which is different from the disputed domain name, so the disclaimer has not so far had any effect on Internet users. Therefore, the Panel is not convinced by this argument of the Second Respondent.
The Second Respondent has also pointed out that the Complainant has delayed the filing of its Complaint for eight years after the registration of the disputed domain name. As discussed in paragraph 4.10 of the WIPO Overview 2.0, panels have recognized that the doctrine or defense of laches as such does not generally apply under the UDRP, and that delay (by reference to the time of the relevant registration of the disputed domain name) in bringing a complaint does not of itself prevent a complainant from filing under the UDRP, or from being able to succeed under the UDRP, where a complainant can establish a case on the merits under the requisite three elements. Panels have noted that the remedies under the UDRP are injunctive rather than compensatory in nature, and that a principal concern is to avoid ongoing or future confusion as to the source of communications, goods, or services. For these reasons, the Panel does not accept the argument of the Second Respondent.
The Second Respondent has also alleged that the PORSCHE trademark was diluted through the existence and the operation of other websites utilizing similar concepts and names. This is a serious allegation, which requires the submission of strong supportive evidence, and such has not been provided by the Second Respondent, so the Panel cannot accept it.
The Second Respondent has also used the argument that the Complainant’s PORSCHE mark is not registered for International Class 41, so there was no unfair competition in the actions of the Second Respondent. In this regard, the Panel notes that paragraph 4(a)(iii) of the Policy does not necessarily require a finding that a respondent has committed an act of unfair competition so that bad faith can be established, and that, apart from the circumstances listed in paragraph 4(a)(iii) of the Policy, the other circumstances listed in paragraph 4(a)(iii) of the Policy actually do not require the parties to be competitors at all. Therefore, this argument of the Second Respondent is rejected as well.
The Second Respondent has also pointed out that the Complainant has not made an attempt for amicable resolution of the dispute prior to the submission of the complaint. In this regard, the Panel notes that the Policy and the Rules do not require the carrying out of such a phase, and the Complainant has certified that a copy of the Complaint was also sent to the Respondent, as provided for in paragraph 3(b)(xii) of the Rules. Therefore, this argument of the Second Respondent is also rejected.
To sum up, as found above in the present decision, the disputed domain name is confusingly similar to the Complainant’s distinctive PORSCHE trademark, and the Respondents have been found not to have any rights or legitimate interests in it, while most likely being aware of the goodwill of the Complainant’s trademark and its commercial value. The disputed domain name was associated to a website containing pay-per-click links and an offer for sale of the domain name, [and the Respondents have been found to be responsible for these actions].
Therefore, on the basis of the above, and having rejected the defenses raised by the Respondents, the Panel is prepared to accept that the Respondents are liable for the registration and use of the disputed domain name in bad faith with the intent by using the popularity of the Complainant’s PORSCHE trademark to extract an undue profit by misleading and attracting Internet users to the website at the disputed domain name, and then switching the Internet users to other websites through pay-per-click links that generate sales commissions and offering them to sell the disputed domain name, or - in view of the Second Respondent’s purported website in the process of creation - by offering them for profit event management services related to car races.
As a result, the Panel concludes that the Complainant has established the third element of the test under Policy, paragraph 4(a).
7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <porscheracing.com> be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: December 17, 2012
