The Complainant is A10 Networks, Inc. of San Jose, California, United States of America (“USA” or “United States”), represented by Fenwick & West, LLP, USA.
The Respondent is Dave Styka of London, United Kingdom of Great Britain and Norther Ireland (“United Kingdom”). 2. The Domain Name and Registrar
The disputed domain name is registered with Ascio Technologies Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 10, 2017. On March 13, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 13, 2017, 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 proceeding commenced on March 22, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 11, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 12, 2017.
The Center appointed WiIliam A. Van Caenegem as the sole panelist in this matter on April 20, 2017. 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 provider of application networking technologies. The Complainant’s solutions enable enterprises, service providers, web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks.
The Complainant is the registered owner of the trademark A10 NETWORKS. The Complainant’s trademark A10 NETWORKS (Registration No. 3,336,238) was registered on November 13, 2007 in the United States for goods in class 9.
The disputed domain name was registered on February 27, 2017. At the time of filing the Complaint, the disputed domain name resolved to a website featuring links to third party websites in competition with the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant asserts that it is a leading provider of application networking technologies in the United States. It contends that it has earned an international reputation and asserts that it has won awards for its relevant products, inter alia Microsoft’s Best of Tech award. The Complainant asserts that it has used its trademarks, including the A10 NETWORKS mark, in relation to its products and services since 2004, and has expended significant resources on acquiring recognition and goodwill.
According to the Complainant, the disputed domain name is confusingly similar to the Complainant’s A10 NETWORKS trademark because the latter is included in its entirety in the disputed domain name. The addition of the geographical identifier “usa” does nothing to avoid likely confusion; on the contrary, it increases the likelihood of confusion, since the Complainant was founded and is headquartered in the USA.
Further the Complainant contends that the Respondent is not using the disputed domain name for any bona fide offering of goods or services or in preparation for the offering of such services, or for any other legitimate noncommercial or fair use. The Complainant asserts that after it sent a letter of Complaint, the content of the website to which the disputed domain name resolved was altered to display the words “This web space is expired”, and displaying hyperlinks purportedly to the Complainant as well as to other competing or related security companies such as F5 Networks and Kemp Technologies. Also the Respondent is not known by the disputed domain name or any part of it.
According to the Complainant the disputed domain name was registered and is used in bad faith, (1) by using it to intentionally attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s marks and company name; (2) by using the “@” email address associated with the disputed domain name in furtherance of a fraudulent scheme; (3) by providing inaccurate WhoIs registrant information; and (4) by registering other well-known marks of third parties.
In relation to (2), the Complainant contends that the Respondent uses the relevant email to further a fraudulent scheme by sending emails with the […]@ address. This was an attempt to impersonate the founder of the Complainant, Lee Chen. Using disputed domain names to send “phishing” emails has become an increasingly prevalent scheme to defraud vendors, customers and complainants themselves, according to the Complainant. The Respondent also provided a false email address to the Registrar, which became apparent when an email sent by the Complainant bounced back. The Complainant wrote to the Registrar about this matter but did not receive a response, and therefore initiated this action. According to the Complainant, the provision of the false email address and the failure to respond to communications is a further indication that the Respondent has no rights or legitimate interests and that registration and use of the disputed domain name are in bad faith.
Further supporting the allegation of bad faith is the fact that, according to the Complainant, the Respondent has registered at least two other domain names incorporating well-known trademarks of third parties in combination with “us” or “usa”. That a respondent has a history of registering third-party trademarks supports a finding of bad faith, the Complainant contends, as has been held by previous UDRP Panels. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name is not identical to the Complainant’s A10 NETWORKS trademark. However, it incorporates that trademark in its entirety, with the addition of the term “usa”. The addition of this geographical term is insufficient to prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. Moreover, arguably it even reinforces the suggestion of a connection between the disputed domain name and any website to which it resolves, and the Complainant. The Complainant was founded, is headquartered and conducts much of its business in the USA. The combination of the Complainant’s trademark and the geographical term also does not have any alternative descriptive or generic meaning which would prevent a finding of confusing similarity.
Therefore the Panel holds that the disputed domain name is confusingly similar to the Complainant’s trademark A10 NETWORKS. B. Rights or Legitimate Interests
At the time the Complainant accessed the website to which the disputed domain resolved on March 1, 2017 and March 8 2017, a parking page was displayed containing hyperlinks to other competing or related security companies. The Complainant also addressed correspondence to the Respondent at the email address provided to the Registrar, but it appears that this address was false or inaccurate. In any case the Complainant received no response from the Respondent asserting any rights or interests in the disputed domain name. The Respondent is not known by the disputed domain name or any part of it, and there is no evidence of it ever having conducted legitimate business under that name or anything approximating it. The only apparent use made of the disputed domain name is in relation to a parking page with links to other websites, including to those of competitors of the Complainant. Such activity is not of a nature to vest rights or legitimate interests in the Respondent, quite the contrary: the Respondent has ridden roughshod over the rights of the Complainant by his unauthorized use of a domain name that is confusingly similar to the A10 NETWORKS trademark of the Complainant.
Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant used the trademark A10 NETWORKS long before the Respondent registered the disputed domain name, and had also obtained a trademark registration for it before that date. The Respondent used the disputed domain name at one time for the display of hyperlinks from a parking page to related or competing digital security companies, demonstrating that he was aware of the Complainant and the nature of its activities. The Complainant has a high profile in the relevant business sector. There is no reason for the Respondent to have chosen the particular combination of terms in the disputed domain name other than because of their similarity to the Complainant’s trademarks.
Further, it appears the Respondent may have supplied an intentionally erroneous email address to the Registrar in relation to the disputed domain name. It failed to respond to the correspondence sent by the Complainant, and it seems he has incorporated the trademarks of other unrelated parties in domain names he has registered in the past without any relevant authority to do so. The website to which the disputed domain name resolved on March 1, 2017 and March 8 2017, when the Complainant visited it, displayed hyperlinks identifying related and competing providers of goods and services, some of which in fact directed users to other websites of competitors. This amounts to an attempt to obtain a financial advantage from the false suggestion that the relevant website is connected with the Complainant, and amounts to an activity bearing the hallmarks of bad faith.
Therefore, the Panel holds that the disputed domain name was registered and used 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.
William A. Van Caenegem
Sole Panelist
Date: May 4, 2017
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