The Complainant is Opus Energy Group Limited of Oxford, United Kingdom of Great Britain and the Northern Ireland (“United Kingdom” or “UK”), represented by Barker Brettell LLP, United Kingdom.
The Respondent is Umar Hayyat of Buckinghamshire, United Kingdom. 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 5, 2016. On February 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 6, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 11, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 2, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 4, 2016.
The Center appointed Dawn Osborne as the sole panelist in this matter on March 18, 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 is one of the UK’s leading independent energy suppliers. It was founded in April 2002. The Complainant is the proprietor of a number of registered trademarks including OPUS ENERGY in the UK and in the European Community for its services since at least October 12, 2012.
The Domain Name was registered on October 6, 2015. The Respondent owns a number of domain names including the well-known names of at least four other energy providers in which the Respondent has no apparent rights. One of these domain names containing the mark of a competitor of the Complainant was reported to the Complainant by that competitor as being involved in a fraud. The same bank account as that used in the reported fraud was determined by the Complainant to be connected to an approach to one of the Complainant’s customers in another apparent attempted fraud. 5. Parties’ Contentions A. Complainant
The Complainant’s submissions can be summarized as follows:
The Complainant is one of the UK’s leading independent energy suppliers. It was founded in April 2002. As a result of significant use, advertising and promotion, the Complainant has acquired substantial goodwill and reputation in the trademarks OPUS and OPUS ENERGY. The Complainant is the proprietor of a number of registered trademarks including OPUS ENERGY in the UK and in the European Community for its services since at least October 12, 2012.
The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. It incorporates the Complainant’s OPUS ENERGY mark and merely adds the descriptive expression “sme” which is an acronym for “small and medium-sized enterprises” (“SMEs”). The Complainant is well known for working with SMEs and has a dedicated SME team. As such, consumers would expect to find services aimed at SMEs offered by the Complainant at a web site attached to the Domain Name.
The Complainant was alerted that one of its competitors, CNG, had experienced a problem with an unauthorized third party, the Respondent, who was contacting CNG’s customers to divert funds intended for CNG fraudulently to a third party bank account (the “Bank Account”). The Complainant discovered that the Respondent had also registered the Domain Name. One of the Complainant’s customers received a text asking him to divert funds to the Bank Account. In November 2015 the Domain Name was pointed to the Complainant’s web site, no doubt to better perpetuate a deception. The Complainant wrote to the Respondent who agreed to transfer the Domain Name to the Complainant, but did not do so.
The Respondent has no connections with the Complainant and has not received any consent to use the Complainant’s trademarks. Respondent does not appear to own any trademarks relevant to the name “Opus” or “Opus Energy”.
The fact that the web site was pointed to the Complainant’s web site shows that the Respondent was aware of the Complainant and its rights. The Domain Name was acquired for the purpose of misleading customers and benefitting commercially by use of the Complainant’s reputation and goodwill.
The Respondent owns a number of domain names including the well-known names of at least four other energy providers in which the Respondent has no apparent rights. The registration of these domain names demonstrates a pattern of bad faith conduct by the Respondent.
Alternatively, given the Complainant’s rights and reputation and the fact that the Respondent cannot possibly legitimately use the Domain Name, the Respondent has registered the Domain Name to sell it to the Complainant in excess of the Respondent’s out-of-pocket costs relating to the Domain Name.
Alternatively the Respondent pointed the Domain Name to the Complainant’s web site to obtain an air of legitimacy as it must have been trying, in line with the scheme aimed at CNG, to create official looking communications to deceive customers fraudulently. The Respondent has intentionally attempted to attract Internet users to an on-line location - in this case the Complainant’s own web site - by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of material emanating from the Domain Name.
The Respondent has no rights or legitimate interests in respect of the Domain Name and the Domain Name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The 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 Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith. A. Identical or confusing similarity
The Complainant has, inter alia, trademark registrations for OPUS ENERGY including in the UK and European Community with first use going back to 2002. The Domain Name is confusingly similar to the Complainant’s trademark, consisting of the Complainant’s OPUS ENERGY registered trademark and the addition of a hyphen and the abbreviation “sme”, being a generic term for small and medium sized enterprises. The distinctive part of the Domain Name is the OPUS ENERGY mark. The addition of a hyphen and the non-distinctive abbreviation “sme” does nothing to prevent the confusing similarity of the Domain Name with the Complainant’s OPUS ENERGY registered trademark. As such the Panel holds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interest of the Respondent
The Respondent has not filed a Response. It does not appear to be commonly known by the Domain Name. It has no consent from the Complainant, has not used the Domain Name for a bona fide offering of goods and services given the fraudulent commercial use of it as discussed below. In the circumstances of this case, and in view of the Panel’s discussion below, the Panel finds that the Respondent has no rights or legitimate interest in the Domain Name and the second element of the Policy has been established. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Rules sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including:
“by using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation or endorsement of [its] website or location or of a product or service on [its] website or location.”
The Respondent has not provided any explanation why it would be entitled to register a domain name equivalent to the Complainant’s trademark with only a hyphen and a generic abbreviation added.
Further, in the opinion of the Panel, the use made of the Domain Names is deceptive. The Complainant states that the Domain Name has been used to point to the Complainant’s web site when the Domain Name is not owned or associated with the Complainant allegedly to give legitimacy to the Respondent’s activities via email. The Complainant wrote to the Respondent to complain about the registration and use of the Domain Name. The Respondent agreed to transfer the Domain Name to the Complainant but did not.
There are also emails from a third party source indicating that the Respondent has been involved in fraudulent activity involving another domain name containing the name of another large energy company and the Respondent owns a number of domain names containing the names of large energy companies. There is no evidence the Respondent has tried to sell these names or that its primary purpose is to block the energy companies from registering those domain names. Rather it appears from the evidence in the third party emails that the primary intention is to confuse or deceive customers that the Respondent is associated with the owners of the trademarks used in those domain names when it is not.
As such the Panel finds that on the balance of probabilities that the Domain Name is being used in a way likely to confuse people into believing the Domain Name is registered to or connected to the Complainant.
The registration of a number of domain names containing the names of well-known energy companies suggests the Respondent is familiar with the energy business and the Complainant.
In the absence of a Response from the Respondent, considering the reputation of the Complainant, the fact that the Respondent appears to be familiar with the energy business generally, that he agreed to transfer the name to the Complainant when the Complainant complained that it was being misused but did not, the undisputed contentions of the Complainant that the Domain Name has been pointed at the Complainant’s web site and the evidence in third party emails that the Respondent has been involved in fraudulent activity pretending to be associated with energy providers to seek unjustified payments , the Panel is satisfied that on the balance of probabilities the Complainant has shown that the Respondent registered the Domain Name in bad faith and is using the Domain Name to attract Internet traffic for commercial gain by creating a likelihood of confusion that the Domain Name and all services offered in connection with the Domain Name are connected to the Complainant. As such the Panel finds that the Domain Name has been registered and used in bad faith satisfying the third limb of the Policy under Paragraph 4(b)(iv) as set out above. It is, therefore, not necessary to consider further representations from the Complainant regarding registration and use 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.
Dawn Osborne
Sole Panelist
Date: March 24, 2016
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