The Complainant is HubSpot, Inc. of Cambridge, Massachusetts, United States of America, self-represented.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama City, Panama/ Steve Johnson of Mumbai, Maharastra, India. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2016. On July 1, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 5, 2016, the Center transmitted by email to the Registrar a reminder for registrar verification. On July 5, 2016, 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 July 6, 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 July 11, 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 July 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 4, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 5, 2016.
The Center appointed George R. F. Souter as the sole panelist in this matter on August 11, 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 a USA corporation offering marketing and sales platform, and also hosts an annual conference for marketers and sales people, called “INBOUND”. Details of the Complainant’s United States of America registration number 4855780, of their INBOUND trademark in Class 41 have been supplied to the Panel.
The disputed domain name was registered on April 16, 2016 and resolves to a website relating to the Complainant’s conference which will be held in November 2016, and containing web forms to collect personal information. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name is confusingly similar to its INBOUND trademark, containing its trademark in its entirety, with the mere addition of the numerals “2016”, which suggests a date relevant to the Complainant’s business.
The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, and notes in particular that here is also no evidence that the Respondent owns any trademarks for the term “inbound” or has been commonly known by the disputed domain name, but rather appears that the Respondent began to use the disputed domain name as a direct result of the Complainant’s announcement of their 2016 conference.
The Complainant alleges that the disputed domain name was registered and is being used in bad faith in connection with a website, which has already caused confusion in the minds of intending attendees at the Complainant’s 2016 conference. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
(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. A. Identical or Confusingly Similar
It is well established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators (e.g., “.com”, “.info”, “.net”, “.org”) may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name. The Panel agrees with this view and considers the gTLD indicator “.org” to be irrelevant in the present case.
The disputed domain name incorporates the Complainant’s INBOUND trademark in its entirety, with the mere addition of the element “2016”. It is well-established in prior decisions under the UDRP that the mere addition of descriptive or non-distinctive element to a trademark in which a complainant has rights is insufficient to avoid a finding of confusing similarity. In the circumstances of the present case, “2016” is likely to be perceived as a date and, in the Panel’s opinion, is clearly a descriptive or non-distinctive element.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. In the circumstances of the present case, the Panel also notes that the use of gTLD indicator “.org” would be apposite to the organisers of a conference, and might aid in the deception of potential attendees of the Complainant’s 2016 conference. B. Rights or Legitimate Interests
It is the consensus view of UDRP panels, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the disputed domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.
The Panel regards the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity provided by these proceedings to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name, may lead, in appropriate circumstances, to a finding that a disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the Complainant’s trademark was incorporated in its entirety, with no additions beyond a non-distinctive element and the legally irrelevant gTLD indicator “.com” and in which the Respondent was mimicking the Complainant’s website, as sufficient for the Panel to find that the disputed domain name was registered in bad faith.
In the Panel’s opinion, the use of a disputed domain name in a website which induces people to believe that they are dealing with the organisers of a conference organised by the Complainant in order to collect personal information including payment information, as has proved to be the case here, is clearly use in bad faith as per paragraph 4(b)(iv), and the Panel so finds.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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.
George R. F. Souter
Sole Panelist
Date: August 24, 2016
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