{
    "case_number": "CAC-ADREU-007953",
    "time_of_filling": null,
    "domain_names": [
        "bdswiss.eu"
    ],
    "case_administrator": "  Iveta Špiclová   (Czech Arbitration Court) (Case admin)",
    "complainant": [
        "Katalina Michael (BDSwiss Holding Plc)"
    ],
    "complainant_representative": null,
    "respondent": [
        "Andrew Paterson"
    ],
    "respondent_representative": null,
    "factual_background": "Keplero Holdings Ltd, 160 Arch. Makariou Ave., Floor 1, 3026 Limassol, CY, is the owner of the EUTM BDSwiss, registered on July 21, 2014 in the class 36 of the Nice Classification for “Traded options brokerage; Exchange services relating to the trading of options”, registration number 012708749.\r\n\r\nThe Complainant’s company name is BDSwiss Holding Plc; the Complainant uses the domain<bdswiss.com>.\r\nThe Respondent is the Registrant of the disputed domain name since March 14, 2019.\r\n\r\nThe Respondent has offered the disputed domain name for sale to the Complainant for EUR 25.000,00.\r\n\r\nNo evidence put forward by Complainant that the Respondent has rights in the EUTM BDSwiss.",
    "other_legal_proceedings": "There are no other legal proceedings related to the disputed domain name.",
    "discussion_and_findings": "Following paragraph B 11 (d) (1) of the ADR Rules it is necessary for a complainant for making out a successful case to prove that: \r\n(i) The domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State and\/or Community law and; either\r\n(ii) The domain name has been registered by the respondent without rights or legitimate interest in the name; or\r\n(iii) The domain name has been registered or is being used in bad faith.\r\n\r\n\r\n(i)\r\nThe Complainant has not put forward any evidence that it has rights in the EUTM BDSwiss since the trademark owner is Keplero Holdings Ltd.\r\nHowever, this Panel follows the consensus view of other panels that also names are formally listed as relevant rights; panels have therefore already accepted company names as relevant rights in ADR procedures; even a part of a company name or an abbreviation of a company name is accepted as a relevant right because of the wide understanding of the term trade name in many European countries (Overview of CAC Panel Views on Selected Questions of the Alternative Dispute Resolution for .EU Domain Name Disputes, 2nd Edition (”CAC .EU Overview 2.0”), 34).\r\n\r\nThe company name of the Complainant is BDSwiss Holding Plc with the characteristic part BDSwiss.\r\n\r\nMoreover, the Complainant uses the domain name <bdswiss.com>. Although the ownership or usage of another domain name itself will be not sufficient as a relevant right, but together with another relevant prior right (e.g. a company name like in the present case) the ownership\/usage of a domain may amplify the relevant right as it is in the present case since the Complainant’s characteristic part of the company name is identical with the Complainant’s domain (CAC .EU Overview 2.0, 33).\r\n\r\nThe Complainant therefore has rights in the name BDSwiss recognized or established by the national law of a Member State and\/or Community law.\r\n\r\nIt is this Panels view that for assessing identity or confusing similarity the .eu suffix has to be disregarded. Therefore, the Panel compares the disputed domain name (without .eu suffix) and the name for which a right is recognized or established by national and\/or community law in favor of the Complainant.\r\nIn the present case the Complainant has relevant rights in the name BDSwiss (characteristic part of the company name together with the domain <bdswiss.com>).\r\n\r\nThe Panel therefore finds that the disputed domain name is identical to the Complainant’s rights in the name\/mark “BDSwiss”; the Complainant therefore has satisfied Paragraph B 11 (d) (1) (i) of the ADR Rules.\r\n\r\n\r\n(ii)\r\nThe Complainant asserts that there has been no good faith business contact between Complainant and Respondent – in fact, the converse was the case: The Respondent acquired the disputed domain name on March 14, 2019 and offered the domain to the Complainant for EUR 25.000,00 for sale. The Respondent did not contest this assertion; however, the Respondent asserted that it intended to set up a shopping website under the disputed domain name and the selling price is necessary to cover the expenses for not opening the shopping website in case of selling the disputed domain name. \r\n\r\nConcerning the burden of proof regarding a lack of legitimate rights or interests, in contrast to the exact wording of Paragraph B 11 (d) (1) of the ADR rules and in analogy to the rules developed by UDRP panels, the complainant only needs to establish a prima facie case. Then, the onus shifts to the respondent to rebut the assertion that the respondent lacks legitimate rights or interests. If the respondent fails to show evidence of rights or legitimate interests it is deemed to have none. If the respondent demonstrates evidence of rights or legitimate interests the panel weights all the evidence. The consensus view of panels regarding standard proof almost unanimously require that the assertion be proved on the balance of probabilities; this means that the asserted facts must be more likely to be true than to be false.\r\n\r\nAlthough the Respondent filed a response and asserted its rights and legitimate interests in the disputed domain name as well as the fact that the general burden of proof always remains with the complainant, the facts of the present case, the evidence put forward by the Complainant in the Complaint in contrast to the unsubstantiated allegations of the Respondent, lead this Panel to the conclusion that the Respondent has no rights or legitimate interests in the disputed domain name, has no good faith connection or affiliation with the Complainant, has not used the disputed domain name or a name corresponding to the disputed domain name in connection with the offering of goods or services or has made demonstrable preparation to do so, has not been commonly known by the disputed domain name, is not making a legitimate and non-commercial or fair use of the disputed domain name or does not use the disputed domain name legitimately in any other manner.\r\nIt is therefore this Panel’s conviction that the Complainant made out a successful prima facie case since the Respondent failed to show evidence of rights or legitimate interests to the disputed domain name so that the conditions set out in Paragraph B 11 (d) (1) (ii) of the ADR Rules have been met by the Complainant. \r\n\r\n\r\n(iii)\r\nAlthough there is no need to show bad faith if there is no legitimate interest to make out a successful case for the Complainant (CAC .EU Overview 2.0, 56) this Panel wants to point out that this case also shows bad faith: It is not necessary to prove both registration and use in bad faith (CAC .EU Overview 2.0, 50); it is sufficient if evidence illustrates one of the two elements discussed in order to comply with article 21 (1) of the PPR. \r\n\r\nThe disputed domain name does not resolve to any website - most panels think of nonuse is a proof of bad faith (CAC .EU Overview 2.0, 51); however, whether nonuse alone is enough to prove bad faith or not, it at least indicates bad faith. Together with the fact that Respondent offers to sell the disputed domain name to the Complainant for EUR 25.000,00 together with the fact that the behavior of the Respondent is seen by this Panel as domain trading, shows bad faith without any doubt under Paragraph B 11 (d) (1) (iii) (CAC .EU Overview 2.0, 55; see also Jager & Polacek GmbH v. Redtube, CAC 5891, <redtube.eu>, Transfer). Circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who has rights in the domain name in dispute, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name constitutes evidence of a respondent’s bad faith in the view of this Panel.\r\n\r\nThe mere statement by the Respondent that it is not using the disputed domain name in bad faith lacks any substance and is therefore not a decisive argument for this Panel in favor to the Respondent.\r\n\r\nIt is therefore the Panels conviction that the disputed domain name is also registered or\/and used in bad faith by the Respondent (Paragraph B 11 (d) (1) (iii)).",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the disputed domain name <BDSWISS.EU> be transferred to the Complainant",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2020-07-03 00:00:00",
    "informal_english_translation": "I.      Disputed domain name: bdswiss.eu\r\n\r\nII.     Country of the Complainant: Cyprus; country of the Respondent: Great Britain\r\n\r\nIII.    Date of registration of the domain name: March 14, 2019\r\n\r\nIV.    Rights relied on by the Complainant (Art. 21 (1) Regulation (EC) No 874\/2004) on which the Panel based its decision:\r\n       1.  company name: BDSwiss Holding Plc\r\n       2.  domain name: bdswiss.com\r\n\r\nV.    Response submitted: Yes\r\n\r\nVI.   Domain name is identical to the protected right of the Complainant\r\n\r\nVII.  Rights or legitimate interests of the Respondent (Art. 21 (2) Regulation (EC) No 874\/2004):\r\n        1. No\r\n        2. Why: Assertions without showing appropriate evidence for rights or legitimate interests in the domain name in dispute\r\n\r\nVIII. Bad faith of the Respondent (Art. 21 (3) Regulation (EC) No 874\/2004):\r\n        1. Yes\r\n        2. Why: nonuse; offer for sale for; domain trading; domain selling for valuable consideration in excess of the Respondent's out-of pocket costs\r\n\r\nIX.   Other substantial facts the Panel considers relevant: No\r\n\r\nX.    Dispute Result: Transfer of the disputed domain name\r\n\r\nXI.   Procedural factors the Panel considers relevant: No\r\n\r\nXII.  [If transfer to Complainant] Is Complainant eligible? No",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}