www.cinemaxxtickets.de<\/a>> and <www.cinemaxx-pr.de>.<\/p>",
"other_legal_proceedings": "",
"discussion_and_findings": "Article 4 of Regulation (EU) 2019\/517 of the European Parliament and of the Council of 19 March 2019 on the implementation and functioning of the .eu top-level domain name and amending and repealing Regulation (EC) No 733\/2002 and repealing Commission Regulation (EC) No 874\/2004 (“the Regulation”), a domain name may also be revoked, and where necessary subsequently transferred to another party, following an appropriate ADR or judicial procedure, in accordance with the principles and procedures on the functioning of the .eu TLD laid down pursuant to Article 11, where that name is identical or confusingly similar to a name in respect of which a right is established by Union or national law, and where it:<\/p>\n
(a) has been registered by its holder without rights or legitimate interest in the name; or<\/p>\n
(b) has been registered or is being used in bad faith.<\/p>\n
<\/p>\n
Article 11(d)(1) of the .eu Alternative Dispute Resolution Rules (the “ADR Rules”), the Panel shall issue a decision granting the remedies requested under the ADR Rules in the event that the Complainant proves in an ADR Proceeding where the Respondent is the holder of a .eu domain name registration in respect of which the Complaint was initiated, that:<\/p>\n
(i) The domain name is identical or confusingly similar to a name in respect of which a right is recognised or established by the national law of a Member State and\/or European Union law and;<\/p>\n
either<\/p>\n
(ii) The domain name has been registered by the Respondent without rights or legitimate interest in the name; or<\/p>\n
(iii) The domain name has been registered or is being used in bad faith.<\/p>\n
<\/p>\n
Identical or Confusingly Similar<\/p>\n
Complainant has provided uncontested convincing evidence of its rights in the CINEMAXX mark established by its ownership of the German trademark and service mark registrations described above.<\/p>\n
The Complainant’s trademark is clearly recognisable as the initial and dominant element within the disputed domain name <cinemaxticket.eu>, notwithstanding the absence of the second letter “x” which would easily be overlooked by the casual observer using the Internet.<\/p>\n
The additional element “ticket” is descriptive and has no distinctive character.<\/p>\n
Additionally, as the Complainant has argued, it is well established that the gTLD extension <.eu> within the disputed domain name does not prevent a finding of confusing similarity.<\/p>\n
For these reasons, the Panel finds that the disputed domain name is confusingly similar to the CINEMAXX trademark and service mark, in respect of which a right of the Complainant is established by the national law of a Member State (Germany) and European Union law.<\/p>\n
Therefore, the first condition set forth under Article 4 of the Regulation and Article 11(d)(1)(i) of the ADR Rules is fulfilled.<\/p>\n
Rights and Legitimate Interests<\/p>\n
There is no evidence that the Respondent has any rights or legitimate interests in the disputed domain name, whereas the Complainant has provided convincing evidence that it has rights in the CINEMAXX trademark and service mark under German Federal law.<\/p>\n
In its Complaint, Complainant has made out a prima facie case that the Respondent has no rights legitimate interests in the disputed domain names as set out in Complainant’s detailed submissions above.<\/p>\n
Panelists appointed under the Regulation have been willing to take account of the approach of the panels established under the Uniform Domain Name Dispute Resolution Policy (UDRP) for many generic Top-Level Domains.<\/p>\n
It has been long accepted that because of the difficulty in proving a negative, if a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.<\/p>\n
In the present Complaint the Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.<\/p>\n
In view of the above, and in the absence of any evidence leading to a different conclusion, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name, and that the condition under Article 4(a) of the Regulation and Article 11(d)(1)(ii) of the ADR Rules is satisfied.<\/p>\n
Bad Faith<\/p>\n
While the finding of this Panel that the Respondent has no rights or legitimate interests in the disputed domain name is sufficient to allow the Complainant to succeed, there is in addition positive evidence to show that the disputed domain name was registered and is being used in bad faith.<\/p>\n
The Complainant has shown that the Respondent is using the disputed domain name to impersonate the Complainant. The screen capture of the website to which the disputed domain name resolves uses the Complainant’s CINEMAX mark and very pertinently the Complainant’s figurative mark which demonstrates that the Respondent is aware of the Complainant, its goodwill and reputation and is purporting to impersonate the Complainant.<\/p>\n
The evidence further shows that the Respondent has engaged in a pattern of registering domain names that are confusingly similar to the CINEMAXX mark. It is clear from the registration details and in particular the contact details used by the registrants in each case that the domain names <cinemaxxtickets.de<\/a>> and <cinemaxx-pr.de>, which the Complainant has successfully had transferred to its partner corporation in prior administrative proceedings, were held by the Respondent.<\/p>\nAdditionally, the websites to which the domain names <cinemaxxtickets.de> and <cinemaxx-pr.de> resolved were identical to the website to which the disputed domain name now resolves.<\/p>\n
This Panel finds therefore that on the balance of probabilities, the disputed domain name was registered with the Complainant’s mark in mind, with the intention of taking predatory advantage of the Complainant’s goodwill and reputation.<\/p>\n
Furthermore, the evidence shows that the Respondent is using the confusingly similar domain name to attract and divert Internet traffic intended for the Complainant, to the Respondent’s own website to which the disputed domain name resolves. Such use constitutes bad faith for the purposes of the Policy.<\/p>\n
Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith under Article 4(b) of the Regulation and Article 11(d)(1)(iii) of the ADR Rules.<\/p>\n
<\/p>\n
Eligibility Criteria<\/p>\n
The Complaint requests the transfer of the disputed domain name to the Complainant. As the Complainant is established in Germany, the Complainant’s application satisfies the general eligibility criteria for registration of the disputed domain name set out in Article 3 of the Regulation. Therefore, the Complainant is entitled to request the transfer of the disputed domain name.<\/p>\n
Taking all the above into account, the Panel finds that Complainant has established the prerequisites under the Regulation for the transfer of the disputed domain name.<\/p>",
"decision": "
For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the domain name <cinemaxticket.eu> be transferred to the Complainant.<\/p>\n
<\/p>",
"panelists": [
"James Bridgeman"
],
"date_of_panel_decision": "2024-07-10 00:00:00",
"informal_english_translation": "
I. Disputed domain name: cinemaxticket.eu
II. Country of the Complainant: Germany country of the Respondent: Singapore
III. Date of registration of the domain name: 17 March 2024
IV. Rights relied on by the Complainant (B(11)(f) ADR Rules) on which the Panel based its decision:<\/p>\n
\n- German trademark and service mark CINEMAXX, registration number DE 1174717 registered on 5 April 1991, for goods and services in classes 16 and 41<\/li>\n
- German trademark and service mark CINEMAXX, registration number DE 30049561 registered on February 8, 2001 for goods and services in classes 9, 10, 14, 16, 18, 25, 26, 28, 30, 33, 35, 36, 38, 39, 41 42, 43.<\/li>\n
- German trademark and service mark CINEMAXX (figurative), registration number DE 302012054484, registered on February 4, 2013 for goods and services in classes 14, 16, 21, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 41 and 43.<\/li>\n<\/ul>\n
V. Response submitted: No
VI. Domain name is confusingly similar to the protected rights of the Complainant
VII. Rights or legitimate interests of the Respondent (B(11)(f) ADR Rules):
1. Yes
2. Why: The Respondent has no registered trademark in the disputed domain name and no rights in the disputed domain name based on its use as a company name or any other rights. Furthermore, the Complainant submits that because it owns a portfolio of German trademark and service mark registrations for the CINEMAXX mark, third parties are prohibited from using the CINEMAXX trademark or a similar sign in the course of trade without authorisation in a way that is likely to cause confusion with the protected trademark.<\/p>\n
VIII. Bad faith of the Respondent (B(11)(e) ADR Rules):
1. Yes
2. Why: The Respondent is using the disputed domain name to resolve to a website that makes unauthorised use of the Complainant's registered word mark and figurative mark to impersonate the Complainant; and the Respondent has engaged in a pattern of registering domain names that incorporate the Complainant's trademark.
IX. Other substantial facts the Panel considers relevant:
X. Dispute Result: Transfer of the disputed domain name.
XI. Procedural factors the Panel considers relevant: None of particular note.
XII. Is Complainant eligible? Yes<\/p>",
"decision_domains": [],
"panelist": null,
"panellists_text": null
}