The Complainant is Diamond Hill Investment Group, Inc. of Columbus, Ohio, United States of America, represented by Vorys, Sater, Seymour and Pease, LLP, United States of America.
The Respondent is Carole Elkins of Worcester, Missouri, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with T, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 10, 2015. On July 10, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 16, 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 July 23, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 13, 2015.
The Center appointed Carol Anne Been as the sole panelist in this matter on August 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 independent investment management firm based in Columbus, Ohio, United States of America. It was founded in 2000, with over USD 16 billion under management and over 150,000 customers. The Complainant owns an incontestable United States trademark registration for DIAMOND HILL, issued in 2008 for mutual fund investment services; investment management; investment advisory services, claiming first use in 2000; and a United States trademark registration for DIAMOND HILL, issued in 2014 for providing and updating a financial index; providing financial indices of select equities, claiming first use in 2013. The Complainant owns and uses domain names incorporating its DIAMOND HILL mark, including . The Complainant advertises its services throughout the United States.
The disputed domain name is . The Respondent is Carole Elkins, located in Worcester, Missouri, according to the WhoIs information for the disputed domain name. The Respondent obtained the disputed domain name on February 3, 2015, long after the Complainant's rights in its DIAMOND HILL mark were established. The Complainant alleges that the Respondent uses the disputed domain name to host a mirror site that duplicates the Complainant's site, except the mirror site provides contact information for employment opportunities that does not lead to persons connected with the Complainant. The Complainant alleges that the site at the disputed domain name asks job seekers to provide personally-identifiable information and engages with the job seekers, purports to employ them, and asks them to move money from unidentified persons into and out of the job seekers' personal bank accounts. The Complainant has received emails from individuals in Australia about dealings with persons reached through the contact information on the site at the disputed domain name. The Complainant alleges that a criminal enterprise is being conducted through the mirror site at the disputed domain name.
The Complainant sent cease and desist letters to all email addresses of record for the Respondent, and did not receive a response.
The Respondent did not respond to the Complaint. 5. Parties' Contentions A. Complainant
The Complainant alleges that it has exclusive rights to the distinctive DIAMOND HILL mark which is well-known in the United States in the financial field. The Complainant alleges that the disputed domain name is confusingly similar to the Complainant's DIAMOND HILL mark, varying only by omission of one letter "L", a misspelling of its mark. The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name, is not a licensee or affiliate of the Complainant nor authorized to use the Complainant's mark, and is not making legitimate noncommercial or fair use of the disputed domain name. The Complainant alleges that the Respondent registered and is using the disputed domain name in bad faith because the site at the disputed domain name is a mirror of the Complainant's site and is being used to obtain personally identifiable information from job seekers, purport to employ them, and obtain money transfers under false pretenses which the Complainant alleges to be a criminal enterprise. The Complainant requests transfer of the disputed domain name to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has established that it holds rights in the trademark DIAMOND HILL and that it uses the mark in connection with financial services, including on its website at "www.", since prior to the Respondent's registration of the disputed domain name.
The disputed domain name consists of the Complainant's registered mark DIAMOND HILL, differing from that mark only by omission of one letter "L". The disputed domain name emulates the Complainant's domain name, , by including the hyphen between the word "diamond" and the misspelled word "hil". Persons seeking the Complainant's DIAMOND HILL mark and its site at "www." are likely to be confused by the closely similar disputed domain name, . The use of a common or obvious misspelling of a complainant's mark is often found to be confusingly similar to the complainant's mark. Wachovia Corporation v. Peter Carrington,WIPO Case No. D2002-0775.
Thus, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The Respondent has not provided any evidence of circumstances to demonstrate rights or legitimate interests in the disputed domain name.
The Complainant alleges that the Respondent is not a licensee or affiliate of the Complainant, and the Respondent is not authorized to use the Complainant's mark. The Complainant alleges that the Respondent is not making legitimate noncommercial or fair use of the Complainant's mark in the disputed domain name. The Respondent's use of the disputed domain name for a site that mirrors the Complainant's site, providing contact information for employment opportunities that does not lead to the Complainant, and engaging with job seekers under false pretenses, does not constitute legitimate interests in the disputed domain name.
The Respondent has failed to rebut the Complainant's allegations providing any evidence to show rights or legitimate interests in the disputed domain name. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 ("A number of panels have held that the burden on a complainant regarding the second element is necessarily light, because the nature of the registrant's rights or interests, if any, in the domain name lies most directly within the registrant's knowledge. Other panels have held that once the complainant makes a prima facie showing that the registrant does not have rights or legitimate interests in the domain name, the evidentiary burden shifts to the registrant to rebut the showing by providing evidence of its rights or interests in the domain name."). Further the creation of a mirror site is not a legitimate use. See, e.g., Avon Products, Inc. v. Domains Administrator c/o Dynadot Privacy,WIPO Case No. D2013-2056.
Thus, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Evidence of bad faith arises when, among other things, a respondent registers and uses a domain name primarily for the purpose of attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant's mark.
In this case, the Respondent uses the disputed domain name in a manner that is likely to cause confusion as to the source, sponsorship, affiliation, or endorsement of the website and business at the disputed domain name, apparently in an attempt to mislead job seekers into thinking they are dealing with the Complainant as a potential employer. Job seekers have provided personally identifiable information, have purportedly become employed, and have transferred money, all based on false pretenses arising from contact information provided on the site at the disputed domain name. The disputed domain name appears to have been registered and to be used for a fraudulent and criminal enterprise for commercial gain. The creation of a mirror site at the disputed domain name to mislead users for commercial gain is bad faith registration and use. See, e.g., Avon Products, Inc. v. Domains Administrator c/o Dynadot Privacy,WIPO Case No. D2013-2056 (mirror site intended to generate affiliate program revenue by misleading users into "shopping" on the site at the disputed domain name rather than on the Complainant's site).
When the disputed domain name was registered in 2015, the Respondent had constructive knowledge of the Complainant's trademark registration under United States trademark law. See, e.g., Champion Broadcasting System, Inc. v. Nokta Internet Technologies,WIPO Case No. D2006-0128 ("The Panel notes that both parties are located in the USA and the principle of constructive notice can be applied in accordance with the Rules, paragraph 15."). The Respondent was aware of the Complainant and its DIAMOND HILL trademark, as reflected in the copying of the Complainant's site at "www." to create the mirror site at the disputed domain name. The evidence indicates that the disputed domain name has intentionally been used in an attempt to attract, for commercial gain, job seekers to the website at the disputed domain name by creating a likelihood of confusion with the Complainant's trademark and website, to mislead job seekers to provide personally identifiable information and transfer money for the commercial gain of the Respondent.
Absent any statement from the Respondent to the contrary, the Panel may infer that the Respondent cannot refute the Complainant's allegations of bad faith. See, e.g., The Vanguard Group v. Lorna King,WIPO Case No. D2002-1064 ("There is no direct evidence that the Respondent knew of Complainant or its VANGUARD trademark, or intended to use the disputed domain name to confuse and divert Internet users. Nevertheless, the Respondent's knowledge and intention may be determined by common sense inferences from circumstantial evidence.").
Thus, the Panel finds that the Respondent registered and used the disputed domain name in bad faith. 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 disputed domain name be transferred to the Complainant.
Carol Anne Been
Sole Panelist
Date: September 12, 2015
Full & Egal Universal Law Academy