Complainant is Olayan Investments Company Establishment of Athens, Greece, represented by Shearman & Sterling LLP, United Kingdom of Great Britain and Northern Ireland (“UK”).
Respondent is P of Australia and N/A, Ron Barrett of Lynn, Massachusetts, United States of America (“US”). 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Click Registrar, Inc. d/b/a (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 14, 2012. On September 17, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 20, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 21, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on September 21, 2012.
The Center verified that the Complaint together with the 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 Respondent of the Complaint, and the proceedings commenced on September 24, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 14, 2012. On October 15, 2012, the Center informed the parties about a typographical error in one of Respondent’s email address at the time of Notification of Complaint and noted that the Notification of Complaint was correctly transmitted to Respondent at the Registrar-confirmed email and physical address. Accordingly, Respondent was given five additional days, until October 20, 2012, in which to file a response. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 26, 2012.
The Center appointed Clive L. Elliott as the sole panelist in this matter on November 2, 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 Domain Name was registered with the Registrar on August 19, 2012. 5. Parties’ Contentions A. Complainant
Complainant states that it is the registered proprietor of a large portfolio of trade mark registrations of the name OLAYAN, both as a plain word mark and in a stylised form, worldwide.
Complainant further states that it is the parent company of the Olayan Group of Companies, a Saudi Arabian-based multinational enterprise founded in 1947 by its first Chairman, Suliman Saleh Olayan, comprising approximately 50 companies and affiliated entities worldwide, which are engaged in a range of distribution, manufacturing, services and investment activities. Complainant contends that the Olayan Group has earned an unimpeachable reputation for conducting its business with the greatest integrity, such that its name is one of its most valuable assets.
Complainant asserts that the Domain Name consists of its name with the addition of “-”, and is therefore identical or confusingly similar to its name and registered trade mark OLAYAN (US registration no. 2920452 of January 25, 2005; CTM registration no. 008208423 of September 22, 2009). Complainant further asserts that the Domain Name is being used in a deliberate attempt by Respondent to misrepresent itself as a representative of Complainant’s group, which Complainant claims is not the case.
Complainant contends that Respondent’s use of the name “Khaled Olayan”, which Complainant advises is the name of the genuine Chairman of Complainant, is a deliberate attempt by Respondent to deceive the public into thinking that the Domain Name and its user are connected with Complainant, when they are not.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name, and having made due enquiry, Complainant contends that it is not aware of Respondent having been commonly known by the Domain Name or using a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. Complainant notes that the Domain Name is not directed to any active website.
Complainant submits that the Domain Name should be considered as having been registered and used in bad faith, and in particular, it has been used as part of a concerted attempt to deceive for commercial gain, in order to mislead such Internet users into believing that they are dealing with Complainant or other members of Complainant’s group.
Complainant states that in August 2012 it came to its attention that someone had been using an email address incorporating the Domain Name, to send emails representing himself as a director of Complainant’s group in order to entice innocent people into advancing sums of money, believing they were dealing with Complainant’s group. Complainant believes that the same person who is perpetrating these fraudulent activities was responsible for certain activities which were the subject of earlier UDRP complaints lodged by Complainant (Olayan Investments Company v. Anthono Maka, Alahaji, Koko, Direct investment future company, ofer bahar,WIPO Case No. D2011-0128; Olayan Investments Company v. Richard Arteaga and Christine Cochrum,WIPO Case No. D2011-1342; Olayan Investments Company v. Janice Carver,WIPO Case No. D2011-1623; and Olayan Investments Company v. Janice Carver,WIPO Case No. D2012-0212). Complainant suggests that the emails which have been sent in the current case closely resemble those which were exposed in these previous complaints.
Complainant advises that it has posted a message on its website to warn Internet users of its site about the ongoing unlawful use of its name and to seek assistance from persons who have been approached by the users of these bogus email addresses so that they may be traced and prosecuted. B. Respondent
The Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant asserts that it is the registered proprietor of a large portfolio of trade mark registrations of the name OLAYAN, both as a plain word mark and in a stylised form, worldwide. Complainant asserts that it is the parent company of the Saudi Arabian-based Olayan Group of Companies, which was founded in 1947 and comprises some 50 companies and affiliates around the world. The Olayan Group of Companies are said to be engaged in a range of distribution, manufacturing, services and investment activities.
Complainant asserts that the Domain Name consists of its name with the addition of “-”, and is therefore identical or confusingly similar to the OLAYAN trade mark and name. In the absence of any challenge to the Complaint, the Panel accepts that Complainant has the necessary repute in the OLAYAN trade mark and name and that an unrelated entity using a similar domain name is likely to lead to members of the public being confused and deceived.
Complainant further asserts that the Domain Name is being used in a deliberate attempt by Respondent to misrepresent itself as a representative of Complainant’s group and that it is using the name “Khaled Olayan”, (the Chairman of Complainant), which again is a deliberate attempt by Respondent to deceive the public into thinking that the Domain Name and its user are connected with Complainant.
The Panel accepts that the overall impression is that the Domain Name is necessarily connected in some way to Complainant and/or the OLAYAN trade mark and name, but contrary to fact.
On this basis the Panel finds:
a) Complainant has rights in respect of the OLAYAN trade mark and name.
b) The Domain Name is confusingly similar to the OLAYAN trade mark and name.
Accordingly, the Panel is satisfied that the first element of the Policy has been met. B. Rights or Legitimate Interests
Complainant contends that in addition to using the name “Khaled Olayan” Respondent has been using an email address incorporating the Domain Name to send emails representing himself as a director of Complainant’s group. It is alleged that the purpose of this is to entice people into advancing sums of money, and into believing that they are dealing with Complainant’s group, again contrary to the fact.
These are serious allegations and if untrue or incorrect, one would expect Respondent to respond to challenge them. No attempt has been made to do so. Under the circumstances, the Panel infers that this activity and use of a deliberately similar version of Complainant’s OLAYAN trade mark and name is occurring, as alleged. In these circumstances, it is difficult to see how Respondent’s conduct could be characterized as legitimate.
On this basis the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
Having reached the view that Respondent’s conduct could not be characterised as legitimate and that it has created a likelihood of confusion with Complainant and/or the OLAYAN trade mark and name, it may, in appropriate cases, be a relatively small step to finding bad faith. In the absence of any explanation from Respondent, particularly when the allegations are of a serious nature, the Panel finds that it registered and used the Domain Name to take bad faith advantage of Internet users who may wish to avail themselves of Complainant’s goods and services. Further, the Panel finds that such Internet users are likely to be attracted to Respondent’s online offerings and be misled as to their origins, sponsorship or association.
Further, the Panel is satisfied that bad faith registration is supported by the fact that Complainant’s OLAYAN trade mark and name has been known since approximately 1947 and it is reasonable to conclude that Respondent knew or ought to have known of Complainant’s prior rights.
The Panel thus has no difficulty in concluding that the third element of the Policy has been met. 7. Decision
For 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 Complainant.
Clive L. Elliott
Sole Panelist
Dated: November 12, 2011
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