The Complainant is Marshall Amplification PLC of Bletchley, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Safenames Ltd., United Kingdom.
The Respondent is Registration Private, Domains By Proxy LLC of Scottsdale, Arizona, United States of America ("United States") / I S, ICS., Inc of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom. 2. The Domain Name and Registrar
The disputed domain name ("the Disputed 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 September 26, 2017. On September 27, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 28, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 29, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 2, 2017.
The Center verified that the Complaint together with the amended Complaint (hereafter referred to as 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 October 4, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 24, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 25, 2017.
The Center appointed Dawn Osborne as the sole panelist in this matter on November 3, 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 company that designs and manufactures music amplifiers and other sound related goods. It owns the MARSHALL trademark. The Complainant set up their first company in the United Kingdom in 1964. It owns registered trademarks for, inter alia, MARSHALL in the European Union and the United States first registered in 1998 in a cursive logo script for its sound related goods (see European Union trade mark number 000058065, MARSHALL, registered on February 17, 1998). It owns domain names including the MARSHALL trademark including and .
In addition to music products the MARSHALL logo is used for the manufacture and sale of accessories including the MARSHALL fridge released in 2012 when the mark MARSHALL was registered for fridges in the European Union and the United States and the domain name was registered by the Complainant.
The Disputed Domain Name was registered on December 19, 2016, and has been used for pay-per-click links most of which are third party commercial links not connected to the Complainant.
The Disputed Domain Name has been offered for sale. 5. Parties' Contentions A. Complainant
The Complainant's contentions can be summarised as follows:
The Complainant is a company that designs and manufactures music amplifiers and other sound related goods. It owns the MARSHALL trademark. The Complainant set up their company in 1964. It owns registered trademarks for, inter alia, MARSHALL in the European Union and the United States first registered in 1998 in a cursive logo script for use in connection with its sound related goods. It owns many domain names including the MARSHALL trademark including .
In addition to music products the well-known MARSHALL logo is used for the manufacture and sale of accessories including the MARSHALL fridge released in 2012 when the mark MARSHALL was registered for fridges in the European Union and the United States and the domain name was registered by the Complainant.
The Disputed Domain Name was registered in 2016 and is confusingly similar to the MARSHALL trademark featuring a slight misspelling of MARSHALL omitting one "l" and combining the mark with the generic word "fridge" which adds to the likelihood of confusion because of the Complainant's Marshall fridge. The generic Top Level domain ("gTLD") ".com" is necessary for Internet users to use as part of its address and should be omitted in the confusing similarity comparison.
The Respondent does not have any rights or legitimate interests in the Disputed Domain Name. The Disputed Domain Name is set up to reach a pay-per-click landing page which offer links to several third party web sites only some of which refer to MARSHALL fridges. This is not a bona fide offering of services or goods or a legitimate noncommercial or fair use.
The Respondent is not commonly known by the name "Marshal fridge" and has never been given permission by the Complainant to use the Complainant's trademark for any purpose.
The Disputed Domain Name has been registered and used in bad faith. The content at the page attached to the Disputed Domain Name and the use of the element "fridge" with a misspelling of the Complainant's trademark shows actual knowledge of the Complainant and its product the MARSHALL fridge and shows the Respondent has chosen to target the Complainant and its MARSHALL fridge product with a slight misspelling in the Disputed Domain Name. Denial of knowledge is less plausible where respondent uses another term in a domain name that links back to the complainant.
No response was received from the Respondent to a cease and desist letter from the Complainant.
The Disputed Domain Name has been registered and used in bad faith. The Disputed Domain Name is currently offered for sale on "" for USD 2,259 demonstrating the Complainant's primary intention behind registering the Disputed Domain Name is financial gain.
The Respondent has been involved in over 100 UDRP disputes the majority of which have resulted in transfer to the respective complainant and has a history of cyber squatting sufficient to satisfy paragraph 4(b)(ii) of the Policy.
Further using the Disputed Domain Name for pay-per-click links is bad faith registration and use under paragraph 4(b)(iv) of the Policy causing confusion for profit. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical and/or Confusingly Similar
The Disputed Domain Name consists of a misspelling of the Complainant's MARSHALL mark without one of the letters "l", the word "fridge" and the gTLD ".com".
The exclusion of a single letter "l" does not distinguish the Disputed Domain Name from the Complainant's mark especially as "marshal" with a single "l" remains phonetically similar to the Complainant's MARSHALL mark. The addition of a descriptive word "fridge" does not distinguish the Disputed Domain Name from the Complainant's mark and may add to confusion as the Complainant has a MARSHALL fridge product.
The gTLD ".com" does not distinguish the Disputed Domain Name from the Complainant's MARSHALL mark as the ".com" element of the Disputed Domain Name is merely functional in this case and, therefore typically disregarded for the purposes of the Policy.
Accordingly, the Panel holds that the Disputed Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests
The Respondent does not appear to be commonly known by the Disputed Domain Name and is not making a legitimate noncommercial or fair use of it. The site pages attached to the Disputed Domain Name appear to be set up for commercial benefit by taking advantage of the goodwill associated with the Complainant, using the latter's intellectual property rights to make a profit by pointing to third party links unconnected with the Complainant.
As such the Panel finds that the Respondent does not have rights or a legitimate interest in the Disputed Domain Name and that the Complainant has satisfied the second limb of the Policy. C. Registration and Use in Bad Faith
The Respondent's pages connected to the Disputed Domain Name are commercial in nature and it is using them to make profit from linking to third party commercial websites with no connection to the Complainant in a confusing manner. The Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the website and has, therefore registered and used the Disputed Domain Name in bad faith under paragraph 4(b)(iv) of the Policy.
Additionally the Disputed Domain Name appears to be a typosquatting registration only differing by the omission of one "l" from the Complainant's domain name . The Disputed Domain Name has also been offered for sale for profit for a sum in excess of out of pocket costs relating to the Disputed Domain Name although it may not be the primary purpose given the use in relation to third party commercial links with no connection to the Complainant. These are additional facts adding to the evidence that it is more likely than not that the Disputed Domain Name has been registered and used in bad faith.
As such, the Panel holds that the Complainant has made out its case that the Disputed Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy and there is no need to consider any further alleged grounds of 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.
Dawn Osborne
Sole Panelist
Date: November 16, 2017
Full & Egal Universal Law Academy