The Complainant is Evision Holding B.V. of The Hague, Netherlands, represented by Abelman Frayne & Schwab, United States of America.
The Respondent is Name Redacted.1 2. The Domain Name and Registrar
The disputed 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 September 12, 2016. On September 13, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 13, 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 September 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2016. On October 4, 2016, the Center received an email from an individual indicating that the disputed domain name had been registered using the Respondent’s contact details without authorization. The Center emailed the Parties on October 5, 2016, notifying them of the Respondent identity issue.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on October 12, 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 an international software company, headquartered in the Netherlands and with operations in over 25 countries. It is the owner, amongst others, of the following trademark registrations covering products and services in classes 9, 41 and 42:
- Benelux Trademark registration No. 944351 for EVISION registered on December 11, 2013;
- International Trademark registration No. 1197340 for EVISION registered on January 2, 2014; and
- United States of America Trademark registration No. 4801580 for EVISION registered on September 1, 2015.
The Complainant is also the owner of the domain name registered on October 5, 2007.
The disputed domain name was registered on August 1, 2016 and currently does not resolve to an active website. 5. Parties’ Contentions A. Complainant
The Complainant asserts that it is a private limited liability company from the Netherlands, a leader in the field of control of work software and the owner of the EVISION trademark and of the domain name.
The Complainant further asserts that the disputed domain name infringes its prior trade name, domain name and registered trademark EVISION (Annex 7 to the Complaint), being a misspelling of its trademark what is not sufficient to distinguish the disputed domain name from it.
According to the Complainant, an email using the disputed domain name as the second-level domain and the Complainant’s Chief Executive Officer’s (“CEO”) user name was sent to the Complainant’s Chief Operating Officer (“COO”) requesting the transfer of money to an international bank account (Annex 5 to the Complainant). Therefore, the disputed domain name was used to host email addresses that were used in a scheme to disrupt its business and defraud it, in spite of not resolving to a website.
Also according to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name given that:
(i) the fraudulent activity associated with the disputed domain name is clear evidence of the lack of a legitimate interest, and may not be considered a bona fide offering of goods or services, or a legitimate noncommercial fair use of the disputed domain name;
(ii) the Respondent has not been authorized by the Complainant to use the EVISION trademark;
(iii) the Respondent is not commonly known by the “evislon” trademark or by the disputed domain name;
(iii) the Respondent apparently does not offer any goods or services in connection with the disputed domain name; and
(v) no active webpage resolves from the disputed domain name.
Lastly, in relation to bad faith, in the Complainant’s view, it is evident that the disputed domain name was intentionally registered primarily for the purpose of disrupting the Complainant’s business and to attract users, for commercial gain, by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
The Center transmitted notice of the Complaint and commencement of the proceeding to the Respondent by email and express courier. In spite of the physical address being wrong, the individual named in the WhoIs as the Respondent received this notice and corresponded with the Center regarding its lack of involvement in registering the disputed domain name. The identity of the “Respondent-in-fact” is unknown because the Respondent-in-fact deliberately undertook to disguise its identity in order to perpetuate a fraud. Under these circumstances, the Panel considers that the Center discharged its responsibilities under the Policy and Rules to notify the Respondent of this proceeding, and provided it with adequate opportunity to respond.
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order the transfer of the disputed domain name 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.
The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present so as to have the disputed domain name transferred to it, according to paragraph 4(i) of the Policy.
In accordance with paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. A. Identical or Confusingly Similar
The Complainant has established its rights in the EVISION trademark, duly registered in Benelux, United States of America and other jurisdictions (Annex 7 to the Complaint).
In this Panel’s view, the misspelling of the Complainant’s EVISION trademark in the disputed domain name, with the substitution of the second “i” for a “l”, is not sufficient to distinguish the disputed domain name from the Complainant’s mark and qualifies as what has been commonly referred to as “typosquatting”.
For the reasons above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non‑exclusive list of circumstances that indicate the Respondent’s rights to or legitimate interests in the disputed domain name. These circumstances are:
(i) before any notice of the dispute, 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; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the disputed domain name. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules (see, e.g., Banco Bradesco S/A v. B Private Registrant, A Happy DreamHost Customer,WIPO Case No. D2010-2108, ). Nevertheless, the burden is still on the Complainant’s side to make a prima facie case against the Respondent.
In that sense, the Complainant indeed states that it has not licensed or otherwise permitted the Respondent to use the EVISION trademark in the disputed domain name.
Also, the absence of any indication that the Respondent owns registered trademarks or trade names corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name that could be inferred from the details known of the Respondent, corroborate with the Panel’s finding of the absence of rights or legitimate interests.
According to the emails attached to the Complaint (Annex 5) the Respondent has indeed used the disputed domain name in a manner to mimic the Complainant’s CEO requesting the transfer of money to an international bank account. The Panel finds that such use does not constitute a bona fide offering of goods or services, or a legitimate noncommercial fair use of the disputed domain name.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith
The Policy indicates in paragraph 4(b)(iv) that bad faith registration and use can be found in the use of the disputed domain name, with an intentional attempt to attract, for commercial gain, Internet users to the 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 website or location or of a product or service on the website or location.
The Respondent’s knowledge of the Complainant appears to be evident from the use of the Complainant’s CEO name in the fraudulent email sent by the Respondent to the Complainant’s COO (Annex 5 to the Complaint).
In this case, the use of the disputed domain name in connection with fraudulent emails soliciting money transfers mimicking the Complainant’s CEO can indeed mislead Internet users for commercial gain by profiting from the similarity between the disputed domain name and the Complainant’s mark.
Also, as already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate its good faith in the registration or use of the disputed domain name.
For the reasons stated above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use pursuant to paragraph 4(b)(iv) 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.
Wilson Pinheiro Jabur
Sole Panelist
Date: October 26, 2016
1 The Panel has decided that no purpose can be served by including the named Respondent in this decision, and has therefore redacted the Respondent’s name from the caption and body of this Decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name that includes the named Respondent, and has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding. However, the Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published due to exceptional circumstances. See Banco Bradesco S.A. v. FAST-12785241 Attn. B / Name Redacted,WIPO Case No. D2009-1788.
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