The Complainant is Yahoo Holdings, Inc. of Sunnyvale, California, United States of America ("USA"), represented by Kilpatrick Townsend & Stockton LLP, USA.
The Respondent is Ashwani Pandey of New Delhi, India. 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 July 24, 2017. The Center transmitted its request for registrar verification to the Registrar on July 25, 2017. The Registrar replied the same day, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Respondent was the registrant, that the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP") applied, that the Domain Name would expire on September 8, 2017, that the Domain Name would remain locked during this proceeding subject to expiry, that the language of the registration agreement is English, and that the Domain Name has been registered to the Respondent since at least October 7, 2016.
The Center wrote to the Registrar on July 26, 2017, asking it to state whether any action was required to keep the Domain Name under locked status in the event that it expired during the dispute. The Registrar replied the same day, confirming that the Domain Name would remain locked and would not expire during the proceeding, and that the prevailing party may be responsible for the cost of renewal on conclusion of the dispute. The Center drew this information to the attention of the Parties.
The Center verified that 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 July 31, 2017. Delivery of the Written Notice at the registrant's postal address recorded in the Registrar's WhoIs database was confirmed by signature of a recipient.
In accordance with paragraph 5 of the Rules, the due date for Response was August 20, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 21, 2017.
The Center appointed Jonathan Turner as the sole panelist in this matter on August 23, 2017. 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 complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant is the successor to Yahoo! Inc. in respect of most of its trademarks and operating assets. The Complainant's business has used the mark YAHOO! since 1994 for various Internet services including web directory and search services, email, chat, content of various kinds, advertising and streaming. The Complainant owns registrations of the mark YAHOO! in the USA and other countries around the world; these registrations date back as early as February 25, 1997, and some of these registrations indicate the mark was first used in 1994. The Complainant and its predecessors have operated one of the Internet's most frequented websites at "".
The Domain Name was created on September 8, 2016, and currently resolves to a website with a banner reading "YAHOO MAIL SUPPORT". On the home page this is followed by bars with the words: "YAHOO CUSTOMER SERVICES" and "CALL US TOLL FREE: +1-800-935-0741". A further heading "YAHOO CUSTOMER SERVICE NUMBER" is followed by text that reads: "If you are facing any kind of technical issues with your Yahoo email, then it can frustrate and even hamper creativity and productivity at the same time. In this case getting help from the online remote technician can be a relaxing way to get rid of all those time taking technical issues …." The text goes on to extol the technical support service provided through the telephone number.
An "About Us" page, located from the home page by a link in the banner, further extols the technical support and then contains a section headed "DISCLAIMER" followed by this statement: "Yahoo Customer Service is independent third party support provider on payroll basis for the help of yahoo users. We are not associates with any third party brand and offering services on that basis. We also awaring the Yahoo users by dialing our toll free number they are coming to third party organization to acquire Yahoo support." 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its mark YAHOO!. It points out that the mark is very well known and that the Domain Name differs from it only in the addition of the generic or descriptive terms "customer" and "services" and the generic Top-Level Domain ("gTLD") suffix, ".net". The Complainant also draws attention to other UDRP decisions in which domain names consisting of "yahoo" and descriptive words have been held to be confusingly similar to its mark.
The Complainant submits that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. It states that the Respondent is not commonly known by the Domain Name. It alleges that the Respondent is using the Domain Name to perpetrate a phishing scheme to gain access to Internet users' personal information, and observes that this does not constitute a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. The Complainant adds that the Respondent is using the Domain Name for his own financial gain by diverting consumers to his website promoting his purported support services.
The Complainant further alleges that the Domain Name was registered and is being used in bad faith. The Complainant points out that the Respondent must have known of its rights in the mark YAHOO! because this mark is so well known and because the Respondent himself refers to the Complainant's email service in his website. The Complainant contends that the Respondent's registration and use of the Domain Name to attract Internet users to his website and perpetrate a phishing scheme have been in bad faith.
The Complainant seeks a decision that the Domain Name be transferred to the Complainant. 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 or marks 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 and unregistered rights in the mark YAHOO!
The Panel further finds that the Domain Name is confusingly similar to this mark. Apart from the removal of the punctuation mark "!", the Domain Name differs from the Complainant's mark only in the addition of the descriptive words "customer services" and the gTLD suffix, ".net" which should normally be discounted when considering the first requirement of the UDRP. The Panel has no doubt that many Internet users would expect the Domain Name to locate a website through which the Complainant provides customer services to its customers.
The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
Although the Respondent has not disputed the Complainant's allegations, this Panel has some qualms about accepting the Complainant's entirely unsubstantiated allegation that the Respondent is engaged in a phishing scheme.
The Panel is prepared to assume in the Respondent's favour that he is providing a genuine technical support service. On this basis, it is appropriate to assess whether the Respondent has a right or legitimate interest in respect of the Domain Name by reference to the criteria identified in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903, .
According to these criteria, a business may have a right or legitimate interest in using a domain name that incorporates a mark together with a descriptive term or terms to promote the sale of goods or services ancillary to those provided under the mark, if all of the following conditions are satisfied: that the registrant of the domain name is actually offering products or services ancillary to those supplied under the mark; that the website at the domain name is used to promote only those products or services; that the website accurately and prominently discloses the true relationship between the registrant and the supplier, and that the registrant does not attempt to register all domain names that reflect the supplier's mark.
In this case, the Respondent's website located by the Domain Name does not accurately and prominently disclose the Respondent's true relationship with the Complainant. On the contrary, the Respondent's "disclaimer" is unclear and only provided below other material on a subsidiary page, not the home page. In these circumstances, the Respondent cannot be regarded as making a bona fide offering within the meaning of paragraph 4(c)(i) of the UDRP so as to give him a right or legitimate interest in the Domain Name.
Furthermore, it is evident that the Respondent is not commonly known by the Domain Name and that he is not making a legitimate noncommercial or fair use of the Domain Name.
In the circumstances there is no other basis on which the Respondent could claim a right or legitimate interest in the Domain Name. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
The Panel finds that by using the Domain Name, the Respondent has intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of his website and the services promoted on it.
As noted above, the Respondent "disclaimer" is inadequate to dispel the confusion caused by the Domain Name which plainly conveys to many Internet users that the Respondent's website is operated by the Complainant to provide customer services to its customers.
In accordance with paragraph 4(b)(iv) of the UDRP this constitutes evidence of registration and use of the Domain Name in bad faith. There is no evidence displacing this presumption.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. All three substantive requirements of the UDRP are satisfied and it is appropriate to direct 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 disputed domain name, , be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Date: September 8, 2017
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