The Complainant is Haas Food Equipment GmbH of Wien, Austria, represented by Preslmayr Rechtsanwälte OG, Austria.
The Respondent is Usman ABD, Usmandel of Lagos, Nigeria. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 23, 2015. On February 23, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 24, 2015, the Registrar 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 February 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 19, 2015.
The Center appointed Olga Zalomiy as the sole panelist in this matter on March 26, 2015. 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 an Austrian mechanical engineering company, which conducts business all over the world. It is a member of the Haas Group.
The Haas Group owns international trademark registrations in the mark MONDOMIX, including the international trademark registration no. 474486 registered on January 1, 1983. The Complainant registered the domain name on September 14, 2011.
The Respondent registered the Domain Name on November 4, 2014. 5. Parties’ Contentions A. The Complainant
The Complainant claims it is an Austrian mechanical engineering company, which conducts business all over the world. The Complainant alleges that the Respondent registered the Domain Name, which is virtually identical to the Complainant’s domain name , and copied the Complainant’s original website. The Complainant claims that the Respondent used the Domain Name to send emails that purported to be emails coming from a Complainant’s senior executive. The emails allegedly instructed the Complainant’s agents to use a bank account in China for upcoming payments from the Complainant’s customers. According to the Complainant, by using the Domain Name, the Respondent obtained several hundred thousand Euros to be paid to the Complainant.
The Complainant claims it owns MONDOMIX trademark and that the Domain Name is confusingly similar to its trademark and its domain name. The Complainant alleges that the Respondent does not have rights or legitimate interests in the Domain Name because the purpose of the Domain Name registration was to perpetrate fraud. The Complainant alleges that the Domain Name was registered and is being used in bad faith because the Domain Name was registered with the sole purpose of perpetrating fraud. B. The Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In this UDRP proceeding, the Complainant must prove, by a preponderance of the evidence1 each of the following UDRP elements2 :
(i) the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
To satisfy the first UDRP element, a domain name must be “identical or confusingly similar” to a trademark, in which a complainant has rights. The record confirms that the Complainant owns the registered trademark MONDOMIX, so the Complainant proved that it has rights in the trademark.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s MONDOMIX trademark because it fully incorporates the MONDOMIX trademark. The only difference between the Domain Name and the Complainant’s trademark is the use of the number “0” instead of the letter “o” and addition of a hyphen and the surname “Haas”. It is well established that where the distinctive and prominent element of a disputed domain name is the complainant’s mark and the only deviation is the inclusion of numbers, letters or a generic term3 or the generic Top-Level Domain4 , as prefix or suffix, such prefix or suffix does not negate the confusing similarity between the domain name and the mark. Here, the number “0”, the hyphen and the surname “Haas”, do nothing to distinguish or negate the confusing similarity between the Domain Name and the Complainant’s MONDOMIX mark. In fact, the inclusion of the word “haas” and the number “0” into the Domain Name increase the confusion, because it makes the Domain Name virtually identical to the Complainant’s domain name .
Therefore, the Panel finds that the Complainant has satisfied the first UDRP element by proving that the Domain Name is confusingly similar to the MONDOMIX trademark in which the Complainant has rights. B. Rights or Legitimate Interests
To satisfy the second UDRP element, the Complainant is “required to make out a prima facie case that the respondent lacks rights or legitimate interests”5 in the Domain Name.6
The Panel finds that the Complainant presented a prima facie7 showing that the Respondent lacks rights or legitimate interests in the Domain Name because:
- The case file shows that the Respondent chose the Domain Name that is identical to the Complainant’s domain name and confusingly similar to the Complainant’s MONDOMIX trademark.
- The Complainant submitted a copy of a witness report filed with the Austrian Police, showing that the Respondent has been using the Domain Name to perpetrate fraud. The essence of fraud is that the Respondent has used the Domain Name to pose as senior executive of the Complainant and to send false emails on behalf of that executive making the emails look like genuine emails coming from that executive. These false emails have then been used to reroute payments for the Complainant's goods to bank accounts in China, so they are received by the Respondent.
Using a domain name for apparently illegal activities cannot be the basis of rights or legitimate interests in a domain name. The Panel, therefore, finds that the Complainant has made out a prima facie case showing that the Respondent has no rights or legitimate interests in the Domain Name. Because the Respondent failed to offer allegations or evidence demonstrating rights or legitimate interests in the Domain Name, the Complainant has satisfied paragraph 4(a)(ii) of the UDRP.8
Therefore, the Panel finds that the Complainant satisfied the second UDRP element. C. Registered and Used in Bad Faith
To satisfy the third UDRP element, the Complainant must prove that the Domain Name was registered and is being used in bad faith.9
Based on the evidence submitted by the Complainant, the Panel finds that the Respondent registered and is using the Domain Name in bad faith. The Respondent knew about the Complainant’s trademark when he registered the Domain Name because he registered the Domain Name over 30 years after the Complainant registered its MONDOMIX trademark and three years after the Complainant registered its virtually identical domain name . The evidence on file shows that the Domain Name was used to commit fraud against the Complainant. This shows the registration and use of the Domain Name in bad faith. See, Graybar Services Inc. v. Graybar Elec, Grayberinc Lawrenge, WIPO Case No. D2009-1017.
The Panel, therefore, finds that the Complainant has established the third element of paragraph 4(a) of the UDRP. 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 the Complainant.
Olga Zalomiy
Sole Panelist
Date: April 7, 2015
1 Paragraph 4.7, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
2 Paragraph 4(a) of the UDRP.
3 Paragraph 1.2, WIPO Overview 2.0.
4 Id.
5 Paragraph 2.1, WIPO Overview 2.0.
6 Paragraph 4(a)(ii) of the UDRP.
7 See, Paragraph 2.1 of the WIPO Overview, 2.0. “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests.”
8 Id.
9 Burn World-Wide, Ltd. d/b/a BGT Partners v. Banta Global Turnkey Ltd,WIPO Case No. D2010-0470.
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