The Complainant is Accenture Global Services Limited of Dublin, Ireland, represented by DLA Piper US LLP, United States of America ("U.S.").
The Respondent is Tulip Trading Company of Charlestown, Saint Kitts and Nevis. 2. The Domain Name and Registrar
The disputed domain name is registered with Key-Systems GmbH dba (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 25, 2015. On August 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 27, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 1, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 3, 2015.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 4, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 24, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 1, 2015.
The Center appointed Dr. Tobias Malte Müller as the sole panelist in this matter on October 16, 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 the registered owner of numerous trademark registrations for and/or including the term "Accenture" in different countries, e.g., U.S. trademark registration number 3,091,811 for the trademark ACCENTURE (word mark), registered on May 16, 2006 for goods and services in classes 9, 16, 35, 36, 37, 41 and 42; U.S. trademark registration number 3,340,780 for the trademark ACCENTURE (word and figurative mark), registered on November 20, 2007 for goods in classes 6, 8, 9, 14,16, 18, 20, 21, 24 and 28; and Malaysian trademark registration number 01005804 for the trademark ACCENTURE (word and figurative mark), registered on November 14, 2000 for services in class 35.
The disputed domain name was registered by the Respondent on May 15, 2015. The domain name had originally been registered by using a privacy service. This privacy service has been lifted in connection with the dispute between the parties to this UDRP-proceeding and the Registrar has identified the Respondent as the disputed domain name's actual registrant. It further results from the Complainant's allegations and from the evidence submitted that the website available under the disputed domain name is a so-called parking or landing page. 5. Parties' Contentions A. Complainant
It results from the Complainant's undisputed allegations that the Complainant is a large, well-reputed and high-ranked company which uses the trademark ACCENTURE in connection with various services, including management consulting, technology services and outsourcing services. The Complainant has offices and operations in more than 200 cities in 56 countries. The trademark ACCENTURE has been used since January 1, 2001 and was registered in various countries for different classes of goods and services. The Complainant also demonstrated to the satisfaction of the Panel that it has made high investments in advertising the trademark ACCENTURE in different business divisions. It also owns the domain name .
The Complainant contends that the disputed domain name is confusingly similar to its distinctive and widely known trademark ACCENTURE, since the only difference between the disputed domain name and the Complainant's ACCENTURE mark is that the disputed domain name replaces the letter "t" with the letter "r", and these letters are adjacent on a keyboard. Based on the UDRP case-law, the Complainant states that the replacement of one letter for another in a domain name often constitutes so called "typosquatting" and is generally insufficient to materially distinguish a domain name from another's trademark. Furthermore, the Complainant stresses that, in assessing a likelihood of confusion between the disputed domain name and the Complainant's mark, points of similarity are weighed more heavily than points of difference.
It further results from the Complainant's undisputed contentions that the Respondent has no prior rights or legitimate interests in the disputed domain name. There is no evidence that the Respondent uses the disputed domain name in connection with a bona fide offering of goods or services. The Complainant stresses that the Respondent apparently uses the disputed domain name only to divert consumers to third-party websites by click-through links, so that consumers looking for the Complainant's website or the Complainant's employees looking for the Complainant's e-mail portal are being intentionally diverted by the Respondent to third-party websites. Based on UDRP case-law, the Complainant stresses that this activity does not constitute a legitimate, noncommercial or fair use of the disputed domain name, even if the Respondent eventually receives click-through fees. The Complainant has exclusive rights to the trademark ACCENTURE and no license, permission, authorization or other consent has been granted to the Respondent to use the term "accenrure" in the disputed domain name. Further, the Respondent is not commonly known by the disputed domain name and, therefore, cannot claim a legitimate interest in the disputed domain name.
Finally, the Complainant contends that the Respondent registered and uses the disputed domain name in bad faith. It results from the Complainant's undisputed allegations that the trademark ACCENTURE is widely known worldwide and very distinctive and that the Respondent was or should have been aware of the ACCENTURE mark long prior to registering the disputed domain name. Additionally, the Complainant alleges that the Respondent knew of the Complainant's rights in the ACCENTURE mark because it previously registered the domain name using a privacy service, which prompted the Complainant to file a UDRP complaint against the infringing registration. It is therefore most likely that the Respondent was aware of the Complainant's trademark and also registered the disputed domain name for attempting to attract, for commercial gain, Internet users to the Respondent's website or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation or endorsement of the Respondent's website or location, or of a product or service on the Respondent's website or location.
Moreover, according to the Complainant, a further strong indication of bad faith is the fact that the Respondent made "typosquatting" by replacing one letter in a trademark with another which is located in close proximity on a keyboard. By providing links to third-party websites and by receiving click-through fees for diverting Internet users to third-party websites, the Respondent allegedly registered and has used the disputed domain name for the bad-faith purpose of intentionally attempting to attract Internet users to its website by creating a likelihood of confusion with the Complainant's ACCENTURE mark. At last, the Complainant takes the view that the use of a privacy service to hide one's identity may support a finding of bad faith because it allows the Respondent to hide itself from unwanted inquiries. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable".
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements in order to obtain an order that the disputed domain name should be transferred or cancelled:
(i) the disputed domain name 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel is satisfied that the registrant of record for the disputed domain name is the Respondent and will, therefore, proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied. A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, the Complainant must establish rights in a trademark or service mark and secondly establish that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
It results from the evidence provided that the Complainant is the registered owner of various trademarks for and/or including the term "Accenture". Reference is made in particular to the U.S. trademark registration number 3,091,811, registered on May 16, 2006, the U.S. trademark registration number 3,340,780, registered on November 20, 2007, and the Malaysian trademark registration number 01005804, registered on November 11, 2000. These three trademark registrations predate the creation date of the disputed domain name, which is May 15, 2015. Furthermore, the Complainant has been the registered owner of the domain name since August 30, 2000.
The Panel deems the trademark ACCENTURE nowadays as widely known globally, in particular within the relevant Internet community (cf. Accenture Global Services Limited v. ICS Inc./PrivacyP,WIPO Case No. D2013-2098).
The disputed domain name is almost a reproduction of the trademark ACCENTURE in its entirety. The only difference between the opposed terms is the sixth letter which has been replaced in the disputed domain name by the letter "r" instead of the letter "t" in the trademark ACCENTURE. This single-letter difference does not avoid a confusing similarity between the disputed domain name and the Complainant's trademark, in particular regarding its wording and pronunciation.
Moreover, this Panel emphasizes that the case at hand is a typical case of "typosquatting", which occurs when one letter is replaced by another in a domain name. It is also noteworthy that the placement of the letter "r" is adjacent to the letter "t" on standard computer keyboards, what may result in confusion and unwanted access to the Respondent's website linked to the disputed domain name by Internet users in case of misspelling of the Complainant's trademark. According to the consensus view of UDRP case-law, a domain name which contains a common or obvious misspelling of a trademark normally is found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name (see Wachovia Corporation v. Peter Carrington,WIPO Case No. D2002-0775; Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings,WIPO Case No. D2004-0971; Humana Inc. v. Cayman Trademark Trust,WIPO Case No. D2006-0073; E, Inc. v. Digi Real Estate Foundation,WIPO Case No. D2006-1043; Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator,WIPO Case No. D2008-1302; DD IP Holder LLC v. Registrant [923455] / Domain Administrator,WIPO Case No. D2009-0271; S.A.C.I. Falabella v. Hector Ramirez,WIPO Case No. DCO2015-0012).
In the light of the above, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
Pursuant to paragraph 4(a)(ii) of the Policy, the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent's rights or legitimate interests to the disputed domain name. In the Panel's view, based on the allegations stated above, the Complainant has made a prima facie case that none of these circumstances are found in the case at hand and, therefore, that the Respondent lacks rights or legitimate interests in the disputed domain name.
It results from the evidence provided by the Complainant that the website available under the disputed domain name is currently a parking or landing page with sponsored links. Usually, this kind of webpage generates revenues through a pay-per-click model ("PPC"). The existence of parking or landing indications or even of PPC links in a webpage per se does not necessarily result in the lack of rights or legitimate interests in a domain name. However, according to the consensus view of UDRP panels, these indications or links by themselves would not confer rights or legitimate interests arising from a bona fide offering of goods or services or from legitimate noncommercial or fair use of the domain name (see paragraphs 2.6 and 3.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition. See also Canadian Tire Corporation, Limited v. Texas International Property Associates – NA NA,WIPO Case No. D2007-1407; Legacy Health System v. Nijat Hassanov,WIPO Case No. D2008-1708; Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp. WhoisGuard,WIPO Case No. D2010-1404; Havanna S.A. v. Brendan Hight, Mdnh Inc,WIPO Case No. D2010-1652).
Considering that the website available under the disputed domain name does not present any other kind of commercial or informative content and that it does not offer any goods or services, the sole purpose of the disputed domain name is to resolve to a pay-per-click advertising website and to collect click-through revenue from advertising links. Such use demonstrates that the Respondent has used the disputed domain name to derive a commercial benefit through diverting Internet users by creating confusion with the Complainant's trademark. This conduct does not confer to the Respondent any rights or legitimate interests arising from a bona fide offering of goods or services or from a legitimate noncommercial or fair use of the disputed domain name.
Furthermore, the Respondent is not commonly known by the disputed domain name nor has it acquired trademark rights pursuant to paragraph 4(c)(ii) of the Policy.
It is acknowledged that once the Panel finds such prima facie case is made, the burden of production shifts to the Respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the disputed domain name. Since the Respondent in the case at hand failed to come forward with any allegations or evidence in this regard, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant is therefore deemed to have satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
According to paragraph 4(a)(iii) of the Policy, the Complainant must establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, "in particular but without limitation", be evidence of the disputed domain name's registration and use in bad faith.
The Complainant has to the satisfaction of the Panel proved a worldwide reputation of its ACCENTURE trademark that has existed for 15 years. Therefore, it is the view of this Panel that the Respondent should have known that the disputed domain name interfered with the Complainant's ACCENTURE trademark when it registered the disputed domain name (cf. Caesars World, Inc. v. Forum LLC,WIPO Case No. D2005-0517; Accenture Global Services Limited v. ICS Inc./PrivacyP, supra). Furthermore, it is possible to presume that the Respondent knew of the Complainant's rights in the ACCENTURE mark because – as evidenced by the Complainant – it previously registered the domain name , which prompted the Complainant to file a UDRP for that domain name. The Complainant asserts the Respondent was aware of this dispute, which was settled outside of the UDRP proceedings.
Considering the high similarity between the trademark ACCENTURE and the disputed domain name as well as the Respondent's awareness of the trademark, the Panel finds that the Respondent registered and is using the disputed domain name for the bad-faith purpose of intentionally attempting to attract Internet users to its website by creating a likelihood of confusion with the Complainant's ACCENTURE mark. The fact that the Respondent has practiced "typosquatting" to mislead Internet users and attempted to hide its identity through the use of privacy services (that has been lifted in connection with this UDRP proceeding) confirms the Respondent's bad faith purposes (see Tumblr, Inc. v. Jingsheng Feng,WIPO Case No. D2013-0454; TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services Unknown Customer,WIPO Case No. D2006-1620).
In the light of the above, the Panel finds that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy. 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.
Tobias Malte Müller
Sole Panelist
Date: October 27, 2015
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