Complainant is Kryterion International Limited of Nassau, Bahamas, represented by Sim & McBurney / Sim Ashton & McKay LLP, Canada.
Respondent is ICS Inc. of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 15, 2017. On August 16, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 17, 2017, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on August 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 10, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 11, 2017.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on September 14, 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
Complainant, Kryterion International Limited, is in the business of developing and providing various testing solutions. In particular, Complainant assists companies, associations and educational institutions to develop and remotely deliver customized exams worldwide. Complainant provides its testing services through computer software and related solutions that are sold and promoted under the mark WEBASSESSOR. Complainant owns a registration for the WEBASSESSOR mark in Canada, which issued to registration October 29, 2015 (Trademark Registration No. TMA918879) and claiming its use in CANADA since at least as early as 2004, and a pending application for the WEBASSESSOR mark in Australia, which was filed on November 4, 2015 (Application Number 1732133). Complainant also owns, through its wholly owned subsidiary Kryterion, Inc., the domain name , which was registered on January 11, 1997, and which is used to offer and promote Complainant's WEBASSESSOR software and solutions for its testing services. In addition, Complainant has provided in the Complaint a number of archival and current printouts of Complainant's use of the WEBASSESSOR mark with testing tools and services since 2001.
Respondent registered the disputed domain name on April 22, 2010. The disputed domain name currently resolves to a website that displays a number of click through links for various offerings. 5. Parties' Contentions A. Complainant
Complainant asserts that it owns and has itself, or through its predecessors-in-interest and/or their licensees, used and promoted the WEBASSESSOR mark in connection with its software and related solutions for testing services since at least January 1, 2001 in the United States of America, since as early 2004 in Canada, and since as early as August 2014 in Australia.
Complainant contends that the disputed domain name is nearly identical to Complainant's WEBASSESSOR mark because it is merely an intentional misspelling of Complainant's WEBASSESSOR mark by leaving out a letter "s" in the "assessor" portion of Complainant's WEBASSESSOR mark.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent (a) is not commonly known by the disputed domain name, (b) has never used the disputed domain name for a bona fide offering of goods and services, and (c) is not making a legitimate noncommercial or fair use of the disputed domain name, as Respondent has only used the disputed domain name to monetize web traffic flowing through the disputed domain name.
Finally, Complainant asserts that Respondent registered and has used the disputed domain name in bad faith since Respondent has intentionally typosquatted on Complainant's WEBASSESSOR mark in order to confuse consumers and to monetize web traffic flowing through the disputed domain name to a website with click through links to third party websites. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant's claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent's default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar
While ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy, a complainant can also establish standing by providing sufficient evidence that it has unregistered or common law rights in a mark. WIPO Overview 3.0 at sections 1.2.1 and 1.3. Here, Complainant has provided sufficient evidence that it owns and uses the WEBASSESSOR mark in connection with its software and solutions for testing services and that it has used its WEBASSESSOR mark for many years prior to the 2010 date when Respondent registered the disputed domain name. Complainant has also provided evidence that it has obtained a trademark registration for the WEBASSESSOR mark in Canada in 2015, claiming its use in CANADA since at least as early as 2004. Although that registration was obtained after Respondent registered the disputed domain name in 2010, it is nevertheless further evidence that Complainant has rights in the WEBASSESSOR mark for purposes of the first element. WIPO Overview 3.0 at section 1.2.1.
With Complainant's rights in the WEBASSESSOR mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain ".com") is identical or confusingly similar with Complainant's mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that a disputed domain name which consists of a Complainant's mark with a common misspelling is sufficient to meet the threshold. See, e.g., Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator,WIPO Case No. D2008-1302 (finding disputed domain name confusingly similar to the complainant's EXPRESS SCRIPTS mark).
In the instant proceeding, the disputed domain name is confusingly similar to Complainant's WEBASSESSOR mark as it is merely a misspelling of the WEBASSESSOR mark by only dropping a letter "s" in the disputed domain name. WIPO Overview 3.0, sections 1.7 and 1.9. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant's WEBASSESSOR mark and in showing that the disputed domain name is identical or confusingly similar to that trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production to the respondent, the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
From the record in this case, it appears that Complainant itself, or through its predecessors-in-interest, adopted and used the WEBASSESSOR mark for Complainant's software and solutions for testing services well before Respondent registered the disputed domain name in 2010. In addition to the printout of the Canadian Trademark Registration No. TMA918879, claiming its use in CANADA since at least as early as 2004, Complainant has also provided a number of archival and current printouts of Complainant's, and its predecessor's, common law use of the WEBASSESSOR mark with testing tools and services since 2001. As none of this evidence has been countered or contested by Respondent, the Panel concludes that Complainant has established sufficient rights and use of the WEBASSESSOR mark in connection with its software and solutions for testing services prior to the date when Respondent registered the disputed domain name.1
Complainant has also provided evidence that Respondent's use of the disputed domain name has been solely with click through links to offerings by various third parties, including links to third party websites offering payment for taking surveys online – a service arguably related to a survey service provided by Complainant to test takers using Complainant's WEBASSESSOR testing tools and services. Such evidence, when viewed in the context of Respondent's intentional registration of a typo domain name in 2010 based on the WEBASSESSOR mark (which had been in use since 2001) makes it more likely than not that Respondent did not register the disputed domain name for a legitimate noncommercial purpose, but did so to commercially benefit from the disputed domain name.
Given that Complainant has established with sufficient evidence that it owns rights in the WEBASSESSOR mark, and given Respondent's above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
In the present case, the evidence before the Panel shows that (i) the disputed domain name registered by Respondent is nearly identical to Complainant's WEBASSESSOR mark, as it simply consists of a common misspelling of the "assessor" portion of Complainant's WEBASSESSOR mark, and (ii) Respondent has only used the disputed domain name to redirect web traffic to a website full of links to third party offerings and websites and/or to offer the disputed domain name for sale. As Respondent registered the disputed domain name several years after Complainant and/or its predecessors-in-interest had adopted and made use of the WEBASSESSOR mark for its software and solutions for testing services, it appears more likely than not that Respondent intentionally registered a typo version of the WEBASSESSOR mark in order to take advantage of Complainant's WEBASSESSOR trademark for profit. Such evidence, none of which is contested by Respondent who has chosen not to participate in this proceeding, leads this Panel to conclude that Respondent opportunistically targeted Complainant and its WEBASSESSOR mark in bad faith.
Accordingly, the Panel finds that Complainant succeeds under this element 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 Complainant.
Georges Nahitchevansky
Sole Panelist
Date: September 26, 2017
1 The Panel notes that Complainant has submitted a copy of its 2015 Canadian registration for the WEBASSESSOR mark, claiming its use since 2004, along with a pending application for the WEBASSESSOR mark in Australia. As the disputed domain name was registered in 2010, the Panel has not based its analysis of the second and third elements under paragraph 4(a) of the Policy on Complainant's Canadian registration and Australian application. Instead, the Panel has conducted its analysis based on the evidence submitted by Complainant regarding its claimed common law rights in the WEBASSESSOR mark dating back to 2001.
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