The Complainant is Tweak Unlimited Company, of Killorglin, County Kerry, Ireland, represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, United States of America.
The Respondent is Lui Harles, of Morgantown, West Virginia, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with B, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 17, 2011. On November 17, 2011, the Center transmitted by email to B, Inc. a request for registrar verification in connection with the disputed domain name. On November 18, 2011, B, Inc. 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 notified the Complainant about a formal deficiency regarding the remedies requested, on November 21, 2011. The Complainant submitted an amendment to the Complaint to that effect by email, received my the Center on November 21, 2011.
The Center verified that the Complaint together with the amendment to the Complaint/amended 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 November 23, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 13, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2011.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on January 6, 2012. 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 technology company providing design and copywriting through customized marketing solutions for print advertisements, brochures, and flyers, including providing a variety of stock photographs, design templates and copy. The Complainant provides small businesses web-based design solutions to suit their business, marketing and advertising needs. The Complainant has been the recipient of numerous awards and recognition in the United States of America and internationally for their products and services, including the “PC Magazine Editors’ Choice Award”, and the 2011 Overall Dot IE Net Visionary Award. The Complainant was also recognized in “PC Magazine”, “TechCrunch Europe”, and “Print Monthly”.
The Complainant owns a United States Trademark registration for TWEAK under U.S. Registration No. 3,951,347 dated April 26, 2011. The Complainant also owns an International Registration for the trademark TWEAK under Registration No. 1042106, which covers Ireland, Germany, France, Spain, Italy, Portugal and China.
The Complainant also owns and operates a website in association with the domain name .
The Respondent registered the disputed domain name on July 25, 2011, and at the time the Complaint was filed, the disputed domain name reverted to a website titled “Billing Support Center”, which invited Internet users to input personal and credit card information into blank fields. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar
The Complainant owns trademark registrations for the trademark TWEAK, including U.S. Trademark Registration No. 3,951,347 and International Trademark Registration No. 1042106. The Respondent has registered the disputed domain name which is identical to the Complainant’s registered trademark, except for the addition of the word “support” and the “.com” designation. The Complainant contends that the addition of a descriptive word such as “support” does not distinguish a disputed domain name from a registered trademark. Furthermore, the addition of ”.com” top level domain does not distinguish the disputed domain name from the Complainant’s trademark. Rights or Legitimate Interests
The Respondent is not publicly known by the TWEAK mark, and the Complainant submits that the Respondent cannot have any rights or legitimate interests in the disputed domain name, because the Complainant has exclusive rights to the TWEAK trademark in the United States of America, and internationally. The Respondent has no past or current business relationship with the Complainant, and the Respondent was never licensed or otherwise authorized to use the Complainant’s trademark. Further, the Respondent is not making a bona fide use of the disputed domain name, and has used the disputed domain name in connection with a website which misdirects or induces Internet users to enter personal and credit card information into blank fields for the purpose of using that fraudulently obtained information in what appears to be a “phishing scheme”. Registered and Used in Bad Faith
The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith for the following reasons: (i) the Respondent must have known about the Complainant’s rights in the trademark TWEAK when it registered a confusingly similar disputed domain name; (ii) the Respondent registered and is using a confusingly similar disputed domain name which reverts to a website which invites and induces unsuspecting Internet users to enter personal and credit card information into blank fields for purposes of monetary gain; (iii) the Respondent has a pattern of registering disputed domain names for the purpose of fraudulently obtaining credit card information for monetary purposes; and (iv) the Respondent failed to respond to cease and desist letters sent by the Complainant in association with the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant does have trademark rights in the mark TWEAK by virtue of U.S. Trademark Registration No. 3,951,347 and International Trademark Registration No. 1042106.
The Panel further finds that the disputed domain name is identical to the Complainant’s registered trademark TWEAK, except for the addition of the descriptive word “support”. The addition of a descriptive word does not serve to distinguish a disputed domain name from a registered trademark, and in fact can serve to increase the likelihood of confusion. In these circumstances, the Panel finds that the addition of the descriptive word “support” actually increases the likelihood of confusion because it describes services provided by the Complainant.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel notes that the Respondent did not file any Response to the Complaint and accordingly did not contest any of the facts stated in the Complaint. The Panel is therefore prepared to accept the Complainant’s contention that its TWEAK trademark and its products and services have developed a reputation in the U.S. and internationally.
In light of the existence of Complainant’s trademark registrations, together with its level of recognition and awards, and an established Internet presence through the website ”www.”, the Panel is prepared to infer that the Respondent knew about the Complainant’s trademark when it registered the disputed domain name .
The Panel finds no evidence that the Respondent is commonly known by the name “Tweak”, or that the Respondent was licensed or authorized by the Complainant to use the trademark TWEAK, or has any other form of legitimate interest in the TWEAK mark.
The Panel is also prepared to find that the Respondent has not demonstrated a bona fide use of the disputed domain name. At the time the Complaint was filed, the disputed domain name reverted to a website which invited Internet users to enter personal and credit card information, which appears to be part of a fraudulent scheme.
Accordingly, the Panel finds that the Complainant has satisfied the requirements under paragraphs 4(a)(ii) and 4(b) of the Policy. C. Registered and Used in Bad Faith
The Panel, upon review of the evidence filed in the Complaint, finds that the Respondent registered and has used the disputed domain name in bad faith.
In view of the findings in paragraph 6(b) above, the Panel finds that the Complainant has trademark rights in the trademark TWEAK, and that the Respondent was likely aware of the Complainant’s trademark rights when it purchased the disputed domain name. Furthermore, the Panel finds that the disputed domain name reverts to a website which invites Internet users to enter personal and credit card information as part of a phishing scheme to defraud participating users. The Panel finds this fraudulent scheme to be particularly strong evidence of bad faith under the Policy.
Accordingly, the Panel is prepared to find that the Respondent has registered and is using the disputed domain name in bad faith under the Policy.
Therefore, the Panel finds that the Complainant has satisfied the requirements under paragraphs 4(a)(iii) and 4(c) 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 disputed domain name be transferred to the Complainant.
Christopher J. Pibus
Sole Panelist
Dated: January 10, 2012
Full & Egal Universal Law Academy