Complainant is A10 Networks, Inc. of San Jose, California, United States of America ("United States"), represented by Fenwick & West LLP, United States.
Respondent is Aderibigbe Ganiyu of Lagos, Nigeria. 2. The Disputed Domain Name and Registrar
The disputed domain name ("the Disputed Domain Name") is registered with Dynadot, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 7, 2017. On November 7, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 8, 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 the Respondent of the Complaint, and the proceedings commenced on November 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 11, 2017.
The Center appointed Isabel Davies as the sole panelist in this matter on January 18, 2018. 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 has used its A10 trademarks, including the A10 NETWORKS mark, in connection with its products and services since 2004.
Complainant is the owner of registrations for A10 NETWORKS which have been obtained since 2006 in various countries including the United States of America, China, and Japan.
Complainant is the registrant of numerous domain names including A10 and A10 NETWORKS trademarks with generic Top‑Level Domains and country-code Top‑Level Domains.
The Disputed Domain Name was registered August 19 2017.
The site displays a parked page containing no substantive content, with a message stating on the home page "[o]ur website is under construction" along with a countdown timer. 5. Parties' Contentions A. Complainant
Respondent's Disputed Domain Name is confusingly similar to Complainant's A10 and A10 NETWORKS Marks.
Complainant states that it is a leading provider of application networking technologies which enable enterprises, service providers, web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks. It states that, in the highly competitive software industry, Complainant has earned an international reputation for its innovative products, and has won awards such as Microsoft's Best of TechEd awards.
Complainant states that it has used its A10 trademarks, referred to above, including the A10 NETWORKS mark, in connection with its products and services since 2004, and has expended significant resources in developing public recognition and goodwill in its A10-branded products and services.
In addition, Complainant states that it is the registrant of numerous A10 and A10 NETWORKS generic top level domain names and country-code domain names.
Complainant states that the Disputed Domain Name is confusingly similar to Complainant's A10 and A10 NETWORKS trademarks because it is a common and obvious misspelling of Complainant's A10 NETWORKS mark and company name, with the letter "s" misplaced within the mark.
Complainant submits that, because Respondent's Disputed Domain Name is a common and obvious misspelling of Complainant's A10 NETWORKS mark and company name, the Disputed Domain Name clearly is confusingly similar to Complainant's A10 and A10 NETWORKS marks.
Respondent has no rights or legitimate interests in the Disputed Domain Name.
Complainant contends that Respondent lacks rights or legitimate interests in the Disputed Domain Name because Respondent is not using it in connection with any bona fide offering of goods or services or in connection with demonstrable preparations to offer such goods or services. Also Respondent is not making a legitimate noncommercial or fair use of it and has no valid trademark registration or use.
The site displays a parked page, containing no substantive content, with a message stating on the home page "[o]ur website is under construction", along with a countdown timer.
Complainant submits that Respondent's use of a confusingly similar domain name to divert traffic to its website, using someone else's trademark in which Respondent knows it has no rights, is not a bona fide offering of goods or services or legitimate noncommercial use or fair use.
Further, Complainant contends that Respondent does not appear to be commonly known by "A10" or "A10 Networks." It states that Respondent's WhoIs information for the Disputed Domain Name makes no mention of "A10" or "A10 Networks" as Registrant's name. Rather, according to the WhoIs record, Respondent's name is Aderibigbe Ganiyu.
Given the above, and as detailed further in the bad faith section below, Complainant submits that Respondent has no rights or legitimate interests in the Disputed Domain Name.
Respondent registered and is using the Disputed Domain Name in bad faith.
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith as follows: (1) using the Disputed Domain Name to intentionally attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with Complainant's A10 and A10 NETWORKS marks and company name; (2) using the "@" email address associated with the Disputed Domain Name in furtherance of a fraudulent scheme; and (3) registering other well-known marks of third parties.
As mentioned prior, the Disputed Domain Name currently resolves to a parked website. Complainant submits that, in registering and using the Disputed Domain Name, Respondent intended to take unfair advantage of the recognition associated with Complainant's A10 and A10 NETWORKS marks and company name by diverting Internet users from Complainant's official website to his parked website.
Moreover, Complainant submits that Respondent registered and is using the "@" email address associated with the Disputed Domain Name in furtherance of a fraudulent scheme. On October 20, 2017, Respondent sent an email with the address "[…]@", attempting to deposit a fraudulent check that falsely claimed to be issued by Complainant.
Out of concern that further use of the Disputed Domain Name and especially the impersonating email address would be used again to defraud banks, or others, Complainant states that it filed this Complaint.
Moreover, Complainant contends, Respondent's bad faith is further supported by the fact that he or she has registered at least three other domain names containing well-known trademarks of third parties namely (General Dynamics Corporation), (Juniper Networks, Inc.), and (Zenith Bank Plc).
Complainant submits that these facts prove that Respondent registered and is using the Disputed Domain Name in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
The Policy establishes three elements, specified in paragraph 4(a) that must be established by Complainant to obtain relief. These elements are:
(i) The Disputed Domain Name is identical or confusingly similar to the trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interest in respect of the Disputed Domain Name; and
(iii) The Disputed Domain Name has been registered and is being used in bad faith.
Each of these elements will be addressed below.
Complainant must establish these elements even if Respondent does not reply (see The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064). However, under paragraph 14(b) of the Rules, the Panel is entitled to draw such inferences as it considers appropriate from a party's failure to comply with any provision of or requirement under, the Rules, including Respondent's failure to file a Response.
In the absence of a Response, the Panel may also accept as true the factual allegations in the Complaint (see ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009)).
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted. As the proceeding is an administrative one, Complainant bears the onus of proving its case on the balance of probabilities. Complainant must therefore establish all three of the elements specified in paragraph 4(a) of the Policy on the balance of probabilities before a decision can be made to cancel or transfer the Disputed Domain Name. A. Identical or Confusingly Similar
The Panel accepts that Complainant is a leading provider of application networking technologies which enable enterprises, service providers, web giants and government organizations to accelerate, secure and optimize the performance of their data center applications and networks.
The Panel accepts that Complainant is the owner of a considerable number of trademark registrations for relevant services and of domain names for and including Complainant's trademarks A10 and A10 NETWORKS in jurisdictions around the world.
The Panel accepts that the Disputed Domain Name is confusingly similar to Complainant's A10 and A10 NETWORKS trademarks because it is a common and obvious misspelling of Complainant's A10 NETWORKS mark and company name, with the letter "s" misplaced within the mark.
In Wachovia Corporation v. Peter Carrington,WIPO Case No. D2002-0775 the panel found that a domain name is "virtually identical and/or confusingly similar" to a complainant's mark when it is a "purposeful misspelling" of the mark, "commonly referred to as 'typo squatting,'" holding confusingly similar to complainant's WACHOVIA mark. The panel stated that "The practice of 'typosquatting' has been consistently regarded… as creating domain names confusingly similar to the relevant mark."
Because the Disputed Domain Name is a common and obvious misspelling of Complainant's A10 NETWORKS mark and company name, the Panel finds that the Disputed Domain Name is confusingly similar to Complainant's A10 and A10 NETWORKS marks. B. Rights or Legitimate Interests
The Panel accepts that Respondent is not using the Disputed Domain Name in connection with any bona fide offering of goods or services, or in connection with demonstrable preparations to offer such goods or services. It also accepts that Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name, or obtaining a valid registration.
The Panel sees that the "www." site displays a parked page, containing no substantive content, with a message stating on the home page "[o]ur website is under construction" along with a countdown timer. The Panel finds that Respondent is using a confusingly similar domain name to divert traffic to its website. It is using Complainant's trademark. It is inconceivable that Respondent does not know that it has no rights in the Disputed Domain Name and that is not making a bona fide offering of goods or services, or legitimate noncommercial use or fair use of it.
The Panel finds that Respondent is not commonly known by "A10" or "A10 Networks". In Allianz SE v. Safaricom Domains,WIPO Case No. D2015-0661 it was found that respondent is not commonly known by the disputed domain name in part because "Whois information provided by Complainant, list[ed] [r]espondent's organization name as "Safaricom Limited".
The Panel finds that Respondent has no rights or legitimate interests in the Disputed Domain Name. C. Registered and Used in Bad Faith
The Panel accepts that Respondent is using the Disputed Domain Name to intentionally attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with Complainant's A10 and A10 NETWORKS marks and company name.
The Panel accepts that Respondent registered and is using the "@" email address associated with the Disputed Domain Name in furtherance of a fraudulent scheme by attempting to deposit a fraudulent check that falsely claimed to be issued by Complainant. In Chicago Mercantile Exchange Inc., CME Group Inc. v. PrivacyP and Amit Trivedi,WIPO Case No. D2012-1666 the panel found that use of a domain name to impersonate a complainant is bad faith.
The Panel accepts that Respondent is registering other well-known marks of third parties by registering at least three other domain names containing well-known trademarks of third parties namely: (General Dynamics Corporation), (Juniper Networks, Inc.), and (Zenith Bank Plc).
The Panel accepts that it has been established by previous panels that a history of registering third-party marks supports a finding of bad faith. In Société Air France v. Khaja Uddin,WIPO Case No. D2012-2134, where respondent had a "history of registration of domain names which comprise a well-known trademark belonging to other trade mark owners and a descriptive word", it was found that was registered in bad faith.
The Panel finds that Respondent registered and is using the Disputed Domain Name 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 Complainant.
Isabel Davies
Sole Panelist
Date: January 22, 2018
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