The Complainant is Leaseweb IP B.V. of Amsterdam, the Netherlands, represented by Boekx Advocaten, the Netherlands.
The Respondent is Domains by Proxy, LLC of Scottsdale, Arizona, United States of America (“USA”) / Mary Sward of Lebanon, Kentucky, USA. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2016, naming the Respondent as Domains by Proxy LLC. The Center transmitted its verification request to the Registrar the same day. A reply by the Registrar on August 5, 2016 was not received by the Center and was resent on August 11, 2016. The reply stated that the Registrar has received a copy of the Complaint, that the Domain Name is registered with the Registrar, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies, that the Domain Name has been registered to the current registrant since at least August 5, 2016 and expires on August 5, 2017, that it will remain locked during this proceeding subject to expiry, and that the language of the registration agreement is English. On the other hand, the Registrar stated that the registrant is not the Respondent as named in the Complaint, but one Mary Sward. The Registrar provided the full contact details held in respect of the Domain Name on its WhoIs database.
The Center forwarded this information to the Complainant on August 12, 2016, and invited it to amend the Complaint. The Complainant replied on August 15, 2016, stating that it wished to add Mary Sward as a second Respondent.
The Center verified that the Complaint together with this amendment to the Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 18, 2016. In accordance with paragraph 5 of the Rules, the due date for Response was September 7, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 9, 2016.
The Center appointed Jonathan Turner as the sole panelist in this matter on September 14, 2016. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint as amended complied with applicable formal requirements, was duly notified to the Respondents and has been submitted to a property constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant is an Internet service provider operating in Europe, Asia and the USA under the brands LEASEWEB and OCOM. It employs 300 people. It has registered OCOM as a word mark in the Benelux with filing date May 27, 2003, and in the European Union with filing date September 11, 2006. It has owned the domain name since April 21, 1997.
The Respondent registered the Domain Name on August 5, 2016, and used it the same day to send an email purportedly from the Complainant’s chief executive requesting its financial department to transfer a substantial sum of money to a specified account. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its registered trademark OCOM from which it differs only in the substitution of the number 0 for the letter “o” and the addition of the generic Top-Level Domain (“gTLD”) suffix. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name and alleges that it was registered and is being used in bad faith to effect a fraud relying on the confusing similarity of the Domain Name to its mark. The Complainant requests a decision that the Domain Name be transferred to it. B. Respondent
As stated above, the Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name was registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered rights in the mark OCOM. The Panel further finds that the Domain Name is confusingly similar to this mark from which it differs only in the substitution of the number 0 for the letter “o” and the addition of the gTLD suffix. The Panel has no doubt that the Domain Name is likely to be confused with the Complainant’s mark. The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel finds that the Respondent has not used or made preparations to use the Domain Name for a bona fide offering of goods or services. Nor has the Respondent made any legitimate noncommercial or fair use. The only use made of the Domain Name by the Respondent has been to attempt a fraud on the Complainant. The Respondent is not commonly known by the Domain Name and there is no other basis on which the Respondent could claim a right or legitimate interest in respect of the Domain Name. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
As stated above, on the day that the Domain Name was registered, the Respondent used it to make a request purporting to be by the Complainant’s chief executive to its financial department for the transfer of a substantial sum of money to a specified account. Thus the Respondent used the Domain Name and its confusing similarity to the Complainant’s mark and corresponding domain name to attempt to defraud the Complainant. This was plainly a use of the Domain Name in bad faith and the Panel infers that it was registered for this purpose. Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. All three requirements of the UDRP are satisfied and it is appropriate to order that the Domain Name be transferred to the Complainant. 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 Domain Name, , be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Date: September 27, 2016
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