In making its determination, the Panel considered the three factors necessary for a complainant to prevail in a UDRP claim. First, the Panel determined that xaudi.com is confusingly similar to the AUDI mark owned by Complainant, noting that the "inclusion of the preceding letter 'x' does not serve to dispel the confusing similarity of the disputed domain name to the distinctive and well-known AUDI mark."
Turning to the second factor, whether Respondent has rights or legitimate interests in the disputed domain, the Panel emphasized that Respondent "has used [sic] the disputed domain name with parking pages containing pay-per-click advertising links, while also including a banner at the top of the parking pages offering the disputed domain name for sale." The Panel was not impressed by Respondent's assertion of legitimate interest-- "Respondent claims that he registered the disputed domain name because 'xaudi' sounds identical to 'saudi' and the Respondent intended to use the disputed domain name to expand the Respondent’s web hosting business in Saudi Arabia and the Middle East. Yet, despite the passage of more than nine years since the acquisition of the disputed domain name, the Respondent has brought forth not even a scintilla of evidence of demonstrable preparations to use the disputed domain name in this manner. Nor has the Respondent substantiated his claim that 'xaudi' is pronounced identically to 'saudi,' although that would seem easily established by the Respondent if in fact true."
As to the last factor, whether Respondent registered and used the disputed domain in bad faith, as is often the case, the analysis tracked the Panel's handling of the second factor. "Respondent was aware of the Complainant’s AUDI mark when registering the disputed domain name. The Respondent engaged in opportunistic domain name speculation, and the record before this Panel is convincing that the Respondent’s primary motive in relation to the registration and use of the disputed domain name was to capitalize on, or otherwise take advantage of, the Complainant’s rights in the distinctive and well-known AUDI mark, for commercial gain."
In analyzing the final factor, the Panel included a footnote in which it emphasized that Respondent has been involved in similar prior UDRP proceedings: "This is not the first time that the Respondent has been found to be in bad faith after registering a domain name appropriating another’s famous or well-known mark... There are striking similarities in these cases and the instant case that arguably reflect a pattern of conduct by the Respondent. For example, in each of these cases, the disputed domain names differ from the complainant’s trademarks only by the addition or subtraction of a single letter. In each of these cases the Respondent claims to have registered the disputed domain name for use with web hosting activities, but then offers only self-serving statements and no proof. Further, in each of these cases the disputed domain names resolve to parking pages with advertising links unrelated to the complainant’s goods or services, with the Respondent arguing that it would have targeted the complainant’s goods and services were it acting in bad faith. That argument has been rejected by the panels in each of these cases."
Under all the foregoing circumstances, the Panel had little difficulty justifying its decision to transfer the disputed domain.
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