WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

MBA Solutions GmbH v. James Reynolds

Case No. D2018-2469

1. The Parties

The Complainant is MBA Solutions GmbH of Troisdorf, Germany, represented by KKP Rechtsanwälte mbB, Germany.

The Respondent is James Reynolds of Lagos, Nigeria.

2. The Domain Names and Registrar

The disputed domain names <mba-sport.com> and <mba-solutions-de.com> are registered with PDR Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 30, 2018. On October 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 31, 2018, the Registrar 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” 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2018. The Respondent did not submit a Response. Accordingly, the Center notified the Respondent’s default on November 30, 2018.

The Center appointed Steven A. Maier as the sole panelist in this matter on December 5, 2018. 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 a company located in Germany. It is a manufacturer of corporate merchandise including clothing and accessories. It operates websites at “www.mba-sport.de” and “www.mba-solutions.de”.

The disputed domain name <mba-sport.com> was registered on August 14, 2018. The disputed domain name <mba-solutions-de.com> was registered on July 17, 2018.

Neither of the disputed domain names appears to have resolved to any active website.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that it has traded since 2010 under the names “MBA Sport” and “MBA Solutions”. It submits that both such names have become distinctive identifiers of the Complainant and its services and have gained the status of unregistered trademarks under German law.

The Complainant submits that the disputed domain names are identical or confusingly similar to its two names referred to above and to its domain names <mba-sport.de> and <mba-solutions.de>.

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain names. It states that the Respondent has not commonly been known by the disputed domain names and has neither used them for the purpose of a bona fide offering of goods or services nor made legitimate noncommercial or fair use of them. On the contrary, the Complainant submits that the disputed domain names have been used solely for the purpose of a fraud.

The Complainant submits that the disputed domain names have been registered and are being used in bad faith. The Complainant claims that the Respondent used one or both of the disputed domain names to impersonate the Complainant and to order goods from one of the Complainant’s suppliers. When the Respondent received the supplier’s invoice, it forwarded it to the Complainant’s accounts department using an impersonation of the supplier’s name but with fraudulent bank details. The Complainant exhibits email correspondence with its agent in China which evidences its investigation into the alleged scam.

The Complainant requests the transfer of the disputed domain names.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:

(i) that the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) that the disputed domain names have been registered and are being used in bad faith.

Even in a case where no Response has been filed, the Complainant must still establish that each of the three elements set out above is present.

A. Identical or Confusingly Similar

In this case, the Complainant relies exclusively on its claim to unregistered trademark rights in the names “MBA Sport” and “MBA Solutions”. However, while asserting that these names have become distinctive identifiers of the Complainant and its business, the Complainant has failed to provide any evidence in support of this assertion such as, for example, particulars of its historical turnover, geographical reach, promotional spending, industry or media recognition, etc. In the view of the Panel, this constitutes a serious deficiency in the Complainant’s case. However, the Panel has established from its own targeted enquiries at “www.archive.org” that the Complainant (or its predecessor) appears to have operated an active website at “www.mba-sport.de” since at least February 2001, and to have maintained a website at “www.mba-solutions.de” since at least March 2010 and actively to have promoted their business at that website since at least December 2014. On this basis, and in the absence of any contradiction on the part of the Respondent, the Panel is prepared to find that the Complainant has unregistered trademark rights in the names “MBA Sport” and “MBA Solutions”. The disputed domain names are identical to these names but for the generic Top-Level Domain (“gTLD”) “.com” and the second-level domain (“SLD”) “.de.com” and the Panel therefore concludes that that each of the disputed domain names is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

In the view of the Panel, the Complainant’s submissions referred to above give rise to a prima facie case for the Respondent to answer that it has no rights or legitimate interests in respect of the disputed domain names. However, the Respondent has failed to participate in these proceedings and has neither provided an explanation for its choice of the disputed domain names nor advanced any submissions concerning any rights or legitimate interests that it may claim to have in the disputed domain names. The Panel having no other evidence of any such rights or legitimate interests on the part of the Respondent, finds that the Respondent has no rights or legitimate interests in respect of the disputed domain names.

C. Registered and Used in Bad Faith

In the absence once again of any contradiction on the part of the Respondent, the Panel accepts the Complainant’s evidence that the disputed domain names have been used only to impersonate the Complainant for the purpose of the fraudulent scheme which the Complainant has described. The Panel infers in the circumstances that the Respondent registered the disputed domain names for this purpose and finds, accordingly, that the disputed domain names have been registered and are being used in bad faith.

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 names, <mba-sport.com> and <mba-solutions-de.com>, be transferred to the Complainant.

Steven A. Maier
Sole Panelist
Date: December 12, 2018