The Complainant is Yahoo! Inc. of Sunnyvale, United States of America, represented by Matkowsky Law, United States of America.
The Respondents are Mahesh Rohatgi of Noida, India / Prakhar Rastogi, B of Indirapuram, India / Prakhar Rastogi, Best Web Experts of Ghaziabad, India / Privacy Protection Service INC d/b/a PrivacyP of Nobby Beach, Australia / Prashant Mishra, Vipra Busines Solution of Noida, India / Rina Rohatgi of Noida, India / Wemo Tech Support of Noida, India / Charu Rohatgi of Noida, India / Alina Jain of Delhi, India / Raju Hirani, Alfa Infosystem of Noida, India / Brijesh Pandey, IBS Infosystem of Delhi, India / Registration Private, Domains By Proxy, LLC of Scottsdale, United States of America / Amit Singh of Noida, India / Satya Prakash of Foster City, United States of America / Rajveer Singh Chawla of GZB, India / Pooja Pandey, Innovative Business Solutions of Delhi, India. 2. The Domain Names and Registrars
The disputed domain names , , , , , , , , , , , , , , , , , , , , , , , , , , , , and are registered with GoD, LLC. The disputed domain names , , , , and are registered with BigRock Solutions Pvt Ltd.
The disputed domain names and are registered with PDR Ltd. d/b/a PublicDomainR.
The Panel will hereinafter refer to GoD, LLC, BigRock Solutions Pvt Ltd. and PDR Ltd. d/b/a PublicDomainR as the “Registrars”. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2015. On December 22, 2015, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On December 22, 2015 and December 23, 2015, the Registrars transmitted by email to the Center their verification responses both confirming that the Respondents are listed as the registrants and providing the contact details and disclosing registrant and contact information for the disputed domain names which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to the Complainant on January 4, 2016 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on January 7, 2016.
The Center verified that the Complaint and the amendment to 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 and 4, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on January 8, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2016. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on January 29, 2016.
One of the Respondents filed email communications with the Center on January 7, 2016 and January 8, 2016. Another Respondent filed an email communication with the Center on January 29, 2016.
The Center appointed James A. Barker as the sole panelist in this matter on February 1, 2016. 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 operates a guide focused on making Internet users’ digital habits inspiring and entertaining. The Complainant is based in Sunnyvale, California, United States of America, and has offices located throughout the Americas, the Asia Pacific region, Europe, the Middle East and Africa.
The Complainant provides support services free of charge for its products and services, including at an online portal located at “”. The Complainant’s main website is located at “”.
The Complainant owns a registered trademark for YAHOO!, which has been in continuous use since 1994, and has become well-known around the world. As at February 2015, the Complainant had over 1 billion monthly active users. Numerous decisions under the Policy have also found the Complainant’s mark to be famous and well-known.
The majority of the disputed domain names were registered in 2015, with a small number registered in 2014. 5. Parties’ Contentions A. Complainant
The Complainant requests that the Complaint be consolidated against multiple Respondents, on the basis that the disputed domain names are all under common management and control. This common control is exerted by a single entity or network that seeks to obtain remote access to users’ computers through a phishing scheme that compromises users’ personal and potentially sensitive information for financial gain by spoofing the Complainant’s identity. The Complainant says that all of the disputed domain names are related to the same phishing scheme, and have substantially the same navigation structure and design. The Respondents operate a human-like bot net with multiple aliases/identities, toll free numbers, and domain names on the same IP address across multiple registrars, using different name servers. The Complainant has described the disputed domain names in four “groups” which share some common characteristics between them, including the same MSN email account; the same IP address; and the same physical address and phone numbers in the registration details. The Complainant also sets out, in some complicated detail, patterns of similarities between a number of the disputed domain names, which it says ultimately demonstrates that all of the disputed domain names are under common management and control, notwithstanding that the Respondents are acting together in concert, rather than as a single individual.
The Complainant says that the disputed domain names incorporate a substantially indistinguishable variation of its YAHOO! mark, combined with terms either highly related to its customer support services, or geographically descriptive of the Complainant’s services. For this reason, the Complainant says that the disputed domain names are confusingly similar to its mark.
The Complainant also says that the Respondents have no rights or legitimate interests in the disputed domain names. The Respondents are intentionally using the fame of the Complainant’s mark to attract Internet traffic to websites unassociated with the Complainant. The Respondents are using the disputed domain names to perpetrate a common phishing scheme under the guise of rendering commercial customer support services that directly compete with those offered by the Complainant.
Finally, the Complainant says that the disputed domain names were registered and have been used in bad faith. The Respondents have the clear goal of disrupting the Complainant’s services by diverting its traffic for commercial gain with the intent of causing confusion. The disputed domain names are so obviously intended to imply a connection with the Complainant that their very use by the Respondents constitutes opportunistic bad faith. B. Respondents
The Respondents did not reply to the Complainant’s contentions.
There were however informal communications with the Center from two of the Respondents. The first was received by the Center on January 7, 2016 by the Respondent for the disputed domain name (Raju Hirani). In this email the Respondent stated that he has “a website on it [the disputed domain name] and if you open this website you can see we have mentioned Third Party Yahoo support, almost everywhere on the website and we never misguide anyone by the name of Yahoo, please let me know what else i need to do if i want to continue with this domain of ever”. That same respondent then sent an email on January 8, 2016 stating that “this domain name does not belongs to me and I have nothing to do with it kindly rectify your record and then let me know if i can help you with anything related with this matter”.
A second Respondent filed an email communication with the Center on January 29, 2016 from an email address for “Prashant Mishra”. That email relevantly stated that “we are no longer associated with any domains, and there was one domain which was registered and with this email address which was expired in the month of November and was never renewed… so kindly remove my name from the list”. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, for the Complaint to succeed, the Complainant must prove each of the following:
(i) the disputed domain names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
These issues are considered in sequence below, immediately after consideration of whether to consolidate the Complaint against the variously named Respondents. A. Consolidation of the Complaint against multiple Respondents
The first, and more complicated, issue in this case is whether the Complaint can be consolidated against the various named Respondents, as requested by the Complainant. The named Respondents
The following are the named Respondents (that is, the named registrants), as confirmed by the concerned registrars, for the corresponding disputed domain names1 :
Respondent / Registrant name
Disputed domain name
1
Mahesh Rohatgi
2
Prakhar Rastogi
3
Prashant Mishra, Vipra Busines Solution
4
Rina Rohatgi
5
Wemo Tech Support
6
Charu Rohatgi
7
Alina Jain
8
Raju Hirani
9
Brijesh Pandey, IBS Infosystem
10
Amit Singh
11
Satya Prakash
12
Rajveer Singh Chawla
13
Pooja Pandey, Innovative Business Solutions
The test for consolidation
Paragraph 10(e) of the Rules provides that a panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and the Rules.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) provides a summary of panel positions on this issue. In the case of a complaint brought against more than one named respondent, paragraph 4.16 of the WIPO Overview 2.0 provides that a consolidation may be appropriate where the panel finds that the following two factors are present:
- the domain names or the websites to which they resolve are subject to common control. As noted by the panel in Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons,WIPO Case No. D2010-0281, indicia of common control have been found based on commonalities in registrant information, such as shared administrative or technical contacts and shared postal or email addresses, as well as other circumstances in the record indicating that the respondents are related or that a sufficient unity of interests otherwise exists that they may be essentially treated as a single domain name holder for purposes of paragraph 3(c) of the Rules.
- the consolidation would be fair and equitable to all parties.
See also, e.g., Balenciaga v. Ni Hao, Shen Dan, Wu Dan, Zhu Qin, Yan Wei,WIPO Case No. D2011-1541.
In relation to each of the two factors for the consolidation of a complaint outlined above, the Complainant argues that:
- the Complaint should be consolidated on the basis that the disputed domain names are all under the common management and control of a single entity or network that seeks to obtain remote access to users’ computers through a phishing scheme.
- because this case involves a common nucleus of facts and involves common legal issues, the shared interests of the parties are promoted by consolidating the dispute to avoid unnecessary duplication of time, effort and expense, and would generally further the fundamental objectives of the Policy. The evidence for consolidation
The Complainant groups the disputed domain names into four (at greater length and detail than the Panel has described them above). The first group includes those which were registered using the same MSN email account, and which all have a contact email address which includes the name “Brijesh Panday”. These include the disputed domain names registered to Respondents 8, 9 and 13 above. The Complainant has shown that on December 10, 2015 the disputed domain name was registered by Respondent 9 and that somewhere after this date the registrant details where updated to reflect those of Respondent 8.
The second group were registered using the same IP address. These correspond to disputed domain names registered to Respondents 2, 4 and 6. These are the disputed domain names: , , , , , and .
The third group were also registered to the same IP address (but different to the IP address of the second group) and same name server. This group includes the disputed domain names and , registered respectively to Respondent 4 and 5 above.
This Panel accepts that there are at least three possible groupings of the disputed domain names, which establishes that there is a likely connection within the registrants within each of the three groups. But to establish a broader connection between all three groups, it is also necessary to establish some connection across them.
While the Complaint elaborates further, it is sufficient to point to at least two similarities across these three groups: Respondent 4 is in both group two and three. Further, two of the disputed domain names registered to Respondent 2 ( and ) were registered using the same email account as domain names in groups 1 and 3. This then suggests some additional connection between all the Respondents in these three groups as a whole. These are Respondents 2, 4, 5, 6, 8, 9 and 13.
What of the remaining Respondents, and their connection to these three groups? The Complainant variously addresses this in what it describes as “group 4”, including the following connections between the remaining Respondents and particular Respondents in one of the three groups:
- For Respondent 1 – The disputed domain name registered to this Respondent was registered to a privacy service – the same privacy service used by Respondent 2, 13, and 15. More particularly, the Complainant points to similar grammatical errors in a disclaimer on the website at this disputed domain name as those on the website for the disputed domain name registered to Respondent 6.
- For Respondent 3 – The Complainant points to this disputed domain name being hosted on Webhostbox servers similar to disputed domain names registered to Respondent 2.
- For Respondent 7 – The Complainant appears to point to the same grammatical errors at as those referred to above for Respondent 1.
- For Respondent 10 – This Respondent registered at least one of the disputed domain names using the same email account as Respondent 4.
- For Respondent 11 – The Complainant provides evidence that, in September 2015, the website at the disputed domain name registered to this Respondent included a link to a Facebook page, using the same apparent help-desk phone number used as a contact on the website of Respondent 1. By inference, if Respondent 1 is linked to the first three groups, so is Respondent 11.
- For Respondent 12 – This Respondent’s website at the disputed domain name featured the same toll-free number as the websites to which Respondent 2’s disputed domain names resolve.
This evidence, on its own, strongly points to connections between all of the named Respondents. Other evidence in this case supports the inference that these Respondents are operating for a common purpose. It is apparent that all of the disputed domain names carry a similar meaning: relating to contact or customer support offered by the Complainant. All of the disputed domain names wholly incorporate the Complainant’s mark (or, in the case of , a visually equivalent variation thereof). The majority of the websites at the disputed domain names (based on meta data of the websites of 26 of the disputed domain names) involve a similar structure and design. Based on information in the Complaint, 29 of the disputed domain names are also set up as mail accounts.
None of this evidence has been challenged by any of the Respondents.
(The Panel does not consider that the emails, noted above, received by the Center from two of the Respondents contain any substantive information which needs to be considered in this dispute. One was entirely self-contradictory, in first accepting and then disclaiming, any relationship with the disputed domain names; the other was simply another disclaimer of association.) Decision on consolidation
In these circumstances, the Panel accepts the Complainant’s evidence that the disputed domain names are subject to common control, in that there is a “unity of interests” between the various Respondents, whoever they may be in fact. The Complainant has, no doubt painstakingly, dissected the evidence and records relating to the disputed domain names to identify connections between them, as outlined above. The Respondents have provided no evidence in response to that put forward by the Complainant.
The Panel also finds that the consolidation of these disputes would be fair and equitable. On the Complainant’s evidence, and as described further below, all of the disputed domain names appear to have been registered with a similar purpose in mind. There is a commonality of facts and issues for each disputed domain name. As such, it is more procedurally efficient to proceed with a single decision.
For these reasons, the Panel agrees to the consolidation of the Complaint in relation to each of the disputed domain names.
In reaching this conclusion, the Panel notes that it is not necessary for it to find that the disputed domain names are registered to a single entity or person in-fact. The evidence in this case is not clear either way on this point. And whether or not there are multiple Respondents in-fact will be peculiarly within the knowledge of one or more of the Respondents, which have not provided any such information. As noted above, the issue is whether the Respondents can be treated as a single domain name holder, because they are involved in a common enterprise, and whether it is procedurally fair and efficient to do so. The definition of the “Respondent” under paragraph 1 of the Rules2 does not exclude the “holder” of the domain name registrations from being a common enterprise, being carried out by multiple individuals. B. Identical or Confusingly Similar
There is no doubt that the Complainant has registered rights in its YAHOO! trademark, which was registered well in advance of the registrations of the disputed domain names. The Complainant’s mark has also been recognized in a number of past decisions under the Policy: see, e.g., Yahoo! Inc. v. Whois Agent, Whois Privacy Protection Service, Inc. / Domain Vault, Domain Vault LLC,WIPO Case No. D2015-0500.
The Panel finds that all of the disputed domain names are confusingly similar to the Complainant’s mark. The Complainant’s mark is wholly incorporated in all of the disputed domain names (albeit in one case the disputed domain name replaces the o’s in “yahoo” with zeros), with the exception of the exclamation mark which is immaterial. See, e.g., Yahoo! Inc. v. wangwei, gaohaolvshishiwusuo/shaoxiaogen, wang tian, ni maiwo, fangjincheng,WIPO Case No. D2014-0714.
All of the disputed domain names also add generic words which are suggestive of support or help functions. As such services are provided by the Complainant, their addition to the disputed domain names, alongside the Complainant’s mark, may only serve to increase potential confusion. C. Rights or Legitimate Interests
The Complainant has made a substantial case against the Respondents, that they are involved in a “phishing” scheme.
“Phishing” is a form of Internet fraud that aims to steal valuable information such as credit cards, social security numbers, user Ids, passwords, etc. A fake website or email address is created that is similar to that of a legitimate organization and this is used for identity theft and other predatory activities. See, e.g., Halifax plc. v. Sontaja Sunduci,WIPO Case No. D2004-0237.
The disputed domain names either resolve to websites which give the impression of being customer support websites for the Complainant and/or are used for email accounts. As noted above, all of the disputed domain names are confusingly similar to the Complainant’s mark, and are themselves suggestive of being related to customer support provided by the Complainant. The Complainant operates in a commercial environment, and the Panel thinks there is a reasonable inference that the Respondents have registered and used the disputed domain names to obtain some financial advantage from the confusion with the Complainant’s mark. Such a use cannot be a basis for rights or legitimate interests under the Policy.
Past panels have reached similar conclusions in cases involving “phishing” schemes. For example, in CMA CGM v. Diana Smith,WIPO Case No. D2015-1774, the panel found that: “Based on the evidence provided by Complainant, Respondent only uses the Domain Name as part of a common phishing scheme. The phishing scheme uses the Domain Name as its root to create the impression that an email is sent by the financial director of Complainant to customers of Complainant in order to fraudulently induce customers to provide banking information. Obviously, such phishing scam cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name”.
The Respondents have failed to submit any argument or evidence against the prima facie case in the Complaint, as required by the Rules. Under paragraph 14 of the Rules, in the absence of exceptional circumstances, if a party does not comply with the Rules, the Panel shall draw such inferences therefrom as it considers appropriate. This Panel infers that, if the Respondents had a good reply to the Complaint, they would have filed a Response. The failure of the Respondents to do so only reinforces the Panel’s conclusion that the Respondents lack any rights or legitimate interests.
For these reasons, the Panel finds that the Respondents have no rights or legitimate interests in the disputed domain names. D. Registered and Used in Bad Faith
Establishing a phishing website using a domain name that incorporates a complainant’s mark is a strong example of bad faith under the Policy. See Hama GmbH & Co. KG v. Duke Imoh / Hewlett,WIPO Case No. D2015-1372; Banca Mediolanum S.p.A. v. Rita Espsoto/ BlueH- Inc,WIPO Case No. D2010-0966.
The Complainant’s mark is very well-known and is wholly incorporated, in one form or another, in all of the disputed domain names. As noted above, all of the disputed domain name registrations have some connection between them. The evidence of websites operated by the Respondents, apparent phone numbers for support contacts, and email accounts, suggest a calculated attempt to exploit confusion with the Complainant’s mark. Such conduct is squarely of the type that the Policy is designed to prevent.
For these reasons, the Panel finds that the disputed domain names have been registered and used 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 following disputed domain names, be transferred to the Complainant:
James A. Barker
Sole Panelist
Date: February 15, 2016
1 The Complaint was initially filed against privacy services, in addition to other named Respondents. The amendment to the Complainant was filed in part in response to the Registrars’ confirmation of the underlying registrants for some of the disputed domain names. Having identified the actual registrants, the Panel does not consider that the privacy services are otherwise significant in the context of this dispute and, as such, has not further considered them in this decision.
2 The definition of “Respondent” in paragraph 1 of the Rules is “the holder of a domain-name registration against which a complaint is initiated”.
Full & Egal Universal Law Academy