The Complainant is BHP Billiton Innovation Pty Ltd., of Melbourne, Australia, represented by Griffith Hack of Melbourne, Australia.
The Respondent is Maureen Adej, of London, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2010. On September 13, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On September 22, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 13, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 14, 2010.
The Center appointed Richard Hill as the sole panelist in this matter on October 25, 2010. 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 owns the trademark BHP BILLITON.
The Respondent does not have any license or other authorization to use the Complainant’s mark or to sell its products.
The Respondent is using the disputed domain name to send e-mails that falsely purport to come from the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant alleges that it is the world’s largest diversified resources group, employing some 37,000 people in more than 100 operations in 25 countries, with annual turnover in excess of USD 50 billion. The company is headquartered in Melbourne, Australia with major offices in London and other offices around the world.
According to the Complainant, it owns numerous registered trademarks around the world for marks consisting of and containing the words BHP BILLITON. Further, it owns and operates numerous web sites at domain names containing those words.
The Complainant states that the disputed domain name does not resolve to a web site, but rather, the disputed domain name has been used by the Respondent to send e-mails to third parties indicating that these have been considered suitable for employment with the Complainant. Those e-mails falsely purport to come from the Complainant.
According to the Complainant, the disputed domain name is confusingly similar to its mark, which is highly distinctive and well known.
Further, says the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name because it is not similar or in any way connected with the name under which the Respondent holds the domain name registration. Similarly, the Respondent is not making a legitimate or bona fide use of the disputed domain name.
The Complainant alleges that the Respondent has registered and is using the disputed domain name in bad faith for a number of reasons, including the fact that the Respondent is using the disputed domain name with the aim of passing itself off as the Complainant, thus causing confusion, as shown by the e-mails referred to above.
Further, says the Complainant, the Respondent must have been aware of the Complainant and its business when it registered the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
It is clear that the disputed domain name is identical or confusingly similar (in the sense of the Policy) to the Complainant’s mark.
The Panel holds that the Complainant has satisfied its burden of proof concerning this first element of the Policy. B. Rights or Legitimate Interests
The Respondent does not have any license or other authorization to use the Complainant’s mark. It is using the disputed domain name to send e-mails that falsely purport to come from the Complainant.
The Respondent (who did not reply) has not presented any plausible explanation for its use of the Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s failure to reply as it considers appropriate. The Respondent’s actual use of the disputed domain name cannot be considered to be legitimate or bona fide. Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Panel holds that the Complainant has satisfied its burden of proof under this element of the Policy. C. Registered and Used in Bad Faith
The Respondent (who did not reply) has not presented any plausible explanation for its use of the Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that the Respondent did not have a legitimate use in mind when it registered the disputed domain name.
The Respondent’s actual use of the disputed domain name (as noted above) cannot be considered to be bona fide. Further, the Respondent clearly knew about the Complainant, because the e-mails sent by the Respondent using the disputed domain name contain the actual address of the Complainant’s London office. This indicates that the Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and the Complainant’s mark in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy.
As further evidence of bad faith use, the Panel notes that the telephone number given in the cited e-mails is not the actual telephone number of the Complainant’s London office, but a telephone number in Sri Lanka. Thus, the Respondent’s actual use of the disputed domain name is likely to tarnish the Complainant’s mark, which is a further element indicating bad faith registration and use. See CHRISTIAN DIOR COUTURE v. Paul Farley,WIPO Case No. D2008-0008.
The Panel holds that the Complainant has satisfied its burden of proof under this element of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Richard Hill
Sole Panelist
Dated: November 5, 2010
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