The Complainant is F5 Networks, Inc. of Seattle, Washington, United States of America (“United States”) represented by Rosen Lewis, PLLC, United States.
The Respondent is Bohdan Artemchuk of Lutsk, Ukraine. 2. The Domain Name and Registrar
The disputed domain name (the “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 April 14, 2017. On April 18, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 19, 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 proceedings commenced on April 24, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 14, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 15, 2017.
The Center appointed Dawn Osborne as the sole panelist in this matter on May 17, 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 has registered the trade mark F5 as a word mark in the United States as of September 9, 1997, for web related and computer software services with first use recorded as in1996.
The Domain Name was registered on November 3, 2015, and has been used in connection with a website offering services competing with those of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant has registered the trade mark F5 as a word mark in many countries throughout the world including the United States.
The Domain Name is identical with Complainant’s registered mark.
The Respondent prominently and pervasively uses the Complainant’s F5 marks without authorization or licence to defraud Internet and other users by using those marks for services that are confusingly similar to web and cloud services creating a high likelihood that consumers will be confused and mistakenly believe the Complainant is associated with or endorses the Respondent.
The Respondent has no rights or interests in the Complainant’s F5 marks.
The Domain Name appears to have been registered primarily for the purpose of disrupting the business of a competitor and the Respondent intentionally attempted to attract for commercial gain Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s F5 marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location of a product or service on the Respondent’s website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Identical or Confusingly Similar
The Domain Name consists of the Complainant’s F5 mark (which is registered in, inter alia, the United States for web related services with first use in commerce recorded as in 1996 and registered on September 9, 1997), and the generic Top-Level Domain (“gTLD”) “.wtf”.
The gTLD “.wtf” is marketed as the new gTLD that indicates “you won’t believe this!”. As such, it merely indicates there may be something of interest about the subject of the distinctive part of a domain name. Accordingly, the gTLD “.wtf” does not serve to distinguish the Domain Name from the F5 mark, which is the distinctive component of the Domain Name.
Accordingly, the Panel holds that the Domain Name is identical to a mark in which the Complainant has rights.
As such, the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied. Rights or Legitimate Interests
The Complainant has not authorised the use of its mark, at all, or in the Domain Name. The Respondent has not answered this Complaint to give any explanation why it would be allowed to register and use a domain name which is effectively identical to the Complainant’s F5 mark for competing services to the Complainant about 20 years after the Complainant began using and registered this mark.
The Respondent uses the Complainant’s F5 mark prominently on its website to offer competing services. The site does not make it clear that there is no commercial connection with the Complainant and it could be taken to be an official site of the Complainant. The Panel agrees that this use is confusing and deceptive.
As such the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy. Registration and Use in Bad Faith
Considering the fact that the Complainant’s trademark was registered approximately 20 years ago and that the Complainant and Respondent are operating in the same specialist business field, the Panel finds that it is more likely than not that the Respondent was aware of the Complainant and its rights when registering the Domain Name.
In the opinion of the Panel, the use of the Domain Name in relation to the site connected to it is confusing in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it appears to offer services under a Domain Name and on a website containing the Complainant’s mark for similar services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the website likely to disrupt the business of the Complainant.
As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and (iii). 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.
Dawn Osborne
Sole Panelist
Date: May 21, 2017
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