The Complainant is Alamos Gold Inc. of Toronto, Canada, represented by Fleck & Chumak, LLP, Canada.
The Respondent is Registration Private c/o Domains By Proxy, LLC of Scottsdale, Arizona, United States of America ("United States" or "U.S."). The underlying registrant's name has been redacted for the reason explained below in section 6. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 8, 2016. On March 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 March 10, 2016, 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 March 15, 2016.
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 March 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 5, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 6, 2016.
The Center appointed Kiyoshi Tsuru as the sole panelist in this matter on April 21, 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 Alamos Gold Inc., a mineral exploration company and gold producer with three operating mines in North America.
The Complainant is the owner of the following trademark registrations, among others:
Trademark
Registration Number
Class
Registration Date
Country
ALAMOS GOLD
1511838
39
January 30, 2015
Mexico
ALAMOS GOLD
1511460
19
January 29, 2015
Mexico
ALAMOS GOLD
1511458
36
January 29, 2015
Mexico
ALAMOS GOLD
1511837
40
January 30, 2015
Mexico
ALAMOS GOLD
1511839
37
January 30, 2015
Mexico
ALAMOS GOLD
1511459
14
January 29, 2015
Mexico
ALAMOS GOLD
1581237
35
October 19, 2015
Mexico
ALAMOS GOLD
1511836
42
January 30, 2015
Mexico
The Complainant has also filed for the registration of the following trademarks:
Trademark
Application Number
Class
Application Date
Country
ALAMOS GOLD
1729656-00
35, 36, 37, 40, 42
May 25, 2015
Canada
ALAMOS GOLD
86640988
42
May 25, 2015
United States
ALAMOS GOLD
1541819
6
October 24, 2014
Mexico
The disputed domain name was registered by the Respondent on August 20, 2015. 5. Parties' Contentions A. Complainant
The Complainant argues the following:
i) Identical or Confusingly Similar
That except for the generic Top-Level Domain ("gTLD") ".com" and the suffix "inc", the disputed domain name is identical and confusingly similar to the ALAMOS GOLD trademarks owned by the Complainant.
ii) Rights or Legitimate Interests
That there is no evidence of the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
That the Respondent has not been commonly known by the disputed domain name, and that the Respondent has acquired no trademark or service mark rights.
That the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark or service mark at issue.
That the Respondent has used, or allowed the use of the disputed domain name as an instrument of recruitment fraud.
iii) Registered and Used in Bad Faith
That by using the disputed domain name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent's website or other online location, by creating a likelihood of confusion with the Complainant's trademark.
That the Respondent has used the disputed domain name to commit phishing scams, e.g., to improperly obtain customers' personal and financial information.
That the Respondent is guilty of a premeditated, willful and heinous recruitment fraud. That a number of prospective job seekers have contacted the Complainant for verification, outlining the recruitment fraud. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Preliminary Matter – Redaction of the Respondent's Name
The Complainant contends that this case appears to be a case of identity theft in which the underlying registrant of the disputed domain name is an innocent party unaware of the fraud being perpetrated in her name. In its Amended Complaint, the Complainant has helpfully indicated that UDRP panels in previous cases have redacted the identity of the respondent to prevent further victimization of the respondent. The Panel agrees that in such cases, it is common practice to redact the Respondent's name from the published decision (see Maplin Electronics Limited v. Name Redacted,WIPO Case No. D2015-0493).
Therefore, in light of the Complainant's contentions and the circumstances of this case, all further references to the Respondent are to the unknown entity that registered the disputed domain name in the name of the underlying registrant, 7. Discussion and Findings
According to the Policy, to qualify for a cancellation or transfer, a complainant must prove each of the elements listed below:
(i) the respondent's 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 respondent's domain name has been registered and is being used in bad faith.
As the Respondent has failed to file a response to the Complainant's assertions, the Panel may choose to accept the reasonable contentions of the Complainant as true. This Panel will determine whether those facts constitute a violation of the Policy, sufficient to order the transfer of the disputed domain name (see Joseph Phelps Vineyards LLC v. NOLDC, Inc., Alternative Identity, Inc., and Kentech,WIPO Case No. D2006-0292). A. Identical or Confusingly Similar
The Complainant is the owner of several trademark registrations for ALAMOS GOLD in Mexico and has filed trademark applications in Canada and the United States.
Although the Complainant holds no trademark registrations in the U.S., where the Respondent allegedly holds residence, the Complainant has indeed filed trademark applications in both Canada and the U.S. The Policy makes no distinction between localized and widespread trademark rights, and therefore the trademark registrations owned by the Complainant in Mexico suffice to invoke the protection of the Policy, especially taking into account that the Complainant exploits mines in Mexico (see Australian Trade Commission v. Matthew Reader,WIPO Case No. D2002-0786).
The disputed domain name is confusingly similar to the Complainant's trademark ALAMOS GOLD, as it incorporates said trademark in its entirety.
Although the disputed domain name also includes the suffix "inc", said fact does not exempt it from being confusingly similar to the Complainant's trademarks. The term "Inc." is an abbreviation for "Incorporated", and accordingly may be required to be used by companies as part of their names. This Panel further notes that, according to Exhibit 6 of the Complaint, the corporate name of the Complainant is precisely "Alamos Gold Inc.", a fact that further increases the risk of confusion between the disputed domain name and the Complainant and its trademarks (see, mutatis mutandi, British Telecommunications public limited company v. Joshua Stone, Openreach Telecom Ltd.,WIPO Case No. D2015-0162; and Nordea Bank AB v. D,WIPO Case No. D2010-1818).
The addition of the gTLD ".com" in this case is immaterial for purposes of assessing confusing similarity. Therefore, the Panel will not take into account the gTLD ".com" (see Diageo p.l.c. v. John Zuccarini,WIPO Case No. D2000-0541).
The Panel finds that the disputed domain name is confusingly similar to the Complainant's trademarks. The first requirement of the Policy has been fulfilled. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets forth the following examples as circumstances where a respondent may have rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the use by the respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The uncontested evidence provided by the Complainant demonstrates its ownership over several trademark registrations in Mexico for ALAMOS GOLD, and trademark applications related to said word mark filed in the U.S. and Canada.
The Complainant claims to have used the trademark ALAMOS GOLD as far back as 2003. Said claim has gone without opposition by the Respondent.
Considering the undisputed evidence submitted by the Complainant, this Panel finds it adequate to consider that the name ALAMOS GOLD has served as a distinctive sign, and a source identifier associated with the Complainant, as well as its goods and services. Taking this fact into account, the use that has been made of this disputed domain name, which entirely incorporates the trademark ALAMOS GOLD, for deceiving people who would have liked to work for the Complainant, is fraudulent (see, inter alia, UITGERVERIJ CRUX v. W. FREDERIC ISLER,WIPO Case No. D2000-0575; Skattedirektoratet v. Eivind Nag,WIPO Case No. D2000-1314; Australian Trade Commission v. Matthew Reader,WIPO Case No. D2002-0786).
The Respondent has failed to provide any evidence showing that it has been commonly known as . The Respondent did not offer any proof or argument to demonstrate a bona fide use, or preparations of use in connection with the disputed domain name. The Respondent did not provide any evidence of having made a legitimate noncommercial or fair use of the disputed domain name.
In contrast, the Complainant has filed printouts of some unauthorized and suspicious communications in which the disputed domain name was used in fraudulent activities, specifically phishing. According to these emails, several individuals who were looking for a job with the Complainant were deceived, misled and deprived of different amounts of money as a result of the fraudulent mechanism associated with the disputed domain name.
The Panel has found no evidence of rights or legitimate interests in the disputed domain name. The second element of the Policy has been fulfilled. C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances, in particular but without limitation, shall be evidence of registration and use in bad faith:
i) circumstances indicating that the respondent has registered or the respondent has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or
ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on its website or location.
According to Exhibit 4 of the Complaint, the content of which was not challenged by the Respondent, a series of fraudulent emails have been sent to different persons in connection with the disputed domain name as a host.
In said communications, the Respondent and/or the persons in control of the "@" email addresses, represented that they were associated to, or authorized by the Complainant to recruit candidates to work with the Complainant. The alleged potential candidates were then requested to deposit different amounts of money as part of this scam. The severity of such actions is augmented by the fact that, as seen in some of the cases submitted, the candidates were attracted through job postings on a well-known job site, which means that whoever is in control of the management of the email addresses is wrongfully supplanting the Complainant in employment websites.
Impersonating an agent of the Complainant, the person or group controlling the "@" email addresses has/have been systematically collecting personal data of the deceived candidates, such as their full name, full address and mobile phone number, as well as funds that were deposited by these alleged candidates who thought they were participating in a job selection process. This is clearly a case of phishing. It cannot be considered a bona fide use of the disputed domain name (see, mutatis mutandi, Grupo Financiero Inbursa, S.A. de C.V. v. inbuirsa,WIPO Case No. D2006-0614; Accor v. SANGHO HEO / Contact Privacy Inc.,WIPO Case No. D2014-1471).
The phishing scheme per se constitutes bad faith registration and use of the domain name in question (see W.W. Grainger, Inc. v. Name Redacted,WIPO Case No. D2015-1500; Olivetti S.p.A v. mez inc,WIPO Case No. D2015-1934; and, mutatis mutandi, Pfizer Inc v. Michael Chucks / Whoisguard Protected, Whoisguard Inc,WIPO Case No. D2014-0887).
Therefore, the third element of the Policy has been met. 8. 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.
Kiyoshi Tsuru
Sole Panelist
Date: May 5, 2016
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