The Complainant is Oracle International Corporation of California, United States of America (“United States”), represented by Steven M. Levy, United States.
The Respondent is Milen Radumilo of Bucharest, Romania. 2. The Domain Names and Registrars
The disputed domain name is registered with GoD, LLC; the disputed domain name is registered with Treasure Trove Domains LLC; the disputed domain name is registered with eNom, Inc. (the “Registrars”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2018. On January 18, 2018, the Center transmitted by email to the Registrars, GoD, LLC and eNom, Inc., a request for registrar verification in connection with the disputed domain names and , respectively. On January 18, 2018, the Registrars, GoD, LLC and eNom, Inc., transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On January 22, 2018, the Center transmitted by email to the Registrar Treasure Trove Domains LLC a request for registrar verification in connection with the disputed domain name . On the same day, the Registrar Treasure Trove Domains LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to two requests for clarification by the Center, the Complainant amended the Complaint on January 29, 2018 and on February 2, 2018.
The Center verified that the Complaint together with the amendments to 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 February 6, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 26, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 27, 2018.
The Center appointed Alexandre Nappey as the sole panelist in this matter on March 2, 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
The Complainant is Oracle International Corporation, founded in 1977 in California (United States), which is one of the world’s largest developers and marketers of enterprise software products and services, and computer hardware systems.
The Complainant sells its products throughout the world under the ORACLE trademark.
The Complainant is the owner of many ORACLE trademarks registrations among which:
- Unites States trademark registration no. 2107556, registered since October 21, 1997 for goods and services in classes in class 35, 36, and 42;
- European Union Trade Mark registration no. 2843019 ORACLE, registered since June 16, 2004 for goods and services in classes 9, 16, 35, 36, 38, 41 and 42.
Due to their extensive international use, the distinctive ORACLE trademarks have become internationally well-known.
The disputed domain names were registered by the Respondent respectively:
- on November 30, 2016;
- on January 12, 2016;
- on July 26, 2017.
The disputed domain names resolve to qualified parking pages displaying links in connection with the Complainant’s business. 5. Parties’ Contentions A. Complainant
(1) The Complainant first alleges that the disputed domain names , and are similar to its earlier trademark ORACLE, to the point of creating confusion:
- the disputed domain name is a misspelling of the Complainant’s ORACLE trademark, substituting the letter “k” for the letter “l”, thereby making visitors to its websites think that they are being linked to one of the Complainant’s legitimate sites;
- the disputed domain names and use an identical copy of the Complainant’s ORACLE trademark and merely add the additional generic terms “free”, “trainings”, and “fortune teller”. The mere addition of generic terms to a trademark does not avoid the creation of a confusingly similar domain name.
(2) Secondly, the Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
The Respondent’s actions are not a bona fide offering of goods or services as the Respondent’s websites under the disputed domain names redirect users to a rotating series of third-party websites under what is known as the fast flux DNS (FFDNS) technique.
At other times, the disputed domain names resolve to a classic pay-per-click page displaying links which divert visitors - likely the Complainant’s customers and potential customers - to other websites which are not associated with the Complainant and, in some instances, are owned by its competitors.
The Respondent, called “Milen Radumilo”, is not commonly known by any of the disputed domain names or by the term “oracle” and does not own any trademark or service mark rights in the “oracle” name.
The Respondent is not making a legitimate noncommercial or fair use of the disputed domain names without intent for commercial gain.
(3) Finally, the Complainant claims that the disputed domain names were registered and are being used in bad faith.
The Complainant alleges that, as ORACLE is a famous trademark, which long predates the registration dates of the disputed domain names, the Respondent was inevitably aware of the Complainant’s rights.
The Complainant submits that, by using the disputed domain names to redirect users to a rotating series of third parties’ websites (FFDNS technique) and to try to install malware on user’s computers, the Respondent doesn’t use the disputed domain names with a bona fide offering of goods or services
The Complainant also submits that, by using the disputed domain names to resolve to a pay-per-click page, the Respondent is seeking commercial gain.
The Complainant concludes that it demonstrates that Respondent has registered and used the disputed domain names in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Notwithstanding the lack of a formal response from the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that:
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate”.
Having consideration to the Parties’ contentions, the Policy, Rules, Supplemental Rules and applicable substantive law, the Panel’s findings on each of the above mentioned elements are the following: A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant owns exclusive trademark rights in ORACLE, which predate the registration of the disputed domain names , and .
The Panel finds that the disputed domain names are confusingly similar to the registered ORACLE trademark owned by the Complainant.
Indeed,
- the disputed domain name incorporate the entirety of the Complainant’s ORACLE trademark.
The only difference between the trademark ORACLE and the disputed domain name is the substitution of the letter “l” by the letter “k”, letters which are placed next to each other, both on a qwerty keyboard that azerty;
See Zions Bancorporation v. Ryan G Foo, PPA Media Services / Domain Admin, WhoIs Privacy Corp.WIPO Case No. D2014-2278 “The substitution of the letter “l” for the letter “k” appears to be a deliberate misspelling that reflects the fact that the letters “k” and “l” are next to each other on the standard QWERTY keyboard. It appears that the Respondent is engaged in a practice known as “typosquatting” – the registration of a domain name that is a slight variation from a well-known mark in order to divert Internet traffic. That practice takes advantage of Internet users who inadvertently type an incorrect address when seeking to access the trademark owner’s website. Typosquatters often profit by selling advertisements and links to websites operated by the trademark owner’s competitors.”
- the two other disputed domain names and incorporate the entirety of the Complainant’s ORACLE trademark with the mere addition of “free”, “trainings”, and “fortune teller”.
This minor misspelling and this mere addition of descriptive terms do not avoid the confusingly similarity between the earlier trademark ORACLE and the three disputed domain names.
Therefore, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s mark under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain names.
Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or
(iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Considering the difficulty to demonstrate a negative, UDRP panels generally find that if the complainant raises a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the Policy and then the burden shifts to the respondent to demonstrate its rights or legitimate interests. See De Beers Intangibles Limited v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2016-1465.
Here, the Complainant has stated that it has not authorized, licensed or consented to the Respondent any use of its ORACLE trademark.
It results from the circumstances that the Respondent does not own any right in the trademark ORACLE or is commonly known by the disputed domain names.
In the light of what is stated above, the Panel finds that the Complainant has made an unrebutted prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names.
As the Respondent has not provided otherwise, the Panel finds from the available record that the second element of paragraph 4(a) of the Policy is fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out examples of circumstances that will be considered by a panel to be evidence of bad faith registration and use of a domain name.
It provides that:
“For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(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 web site or location or of a product or service on your web site or location.”
Since ORACLE is a well-known and distinctive trademark and there is no evidenced relationship between the parties, it may be assumed that the Respondent was aware of the Complainant’s trademark at the time it registered the disputed domain names , and .
Moreover, the Complainant submitted printouts showing that the three disputed domain names resolve to pay-per-click pages which include links to sites offering competing products or services to the Complainant.
It appears therefore that the Respondent, by making reference to the ORACLE trademark, is trying to create a likelihood of confusion in order to attract, for commercial gain, Internet users to websites on which third parties, including the Complainant’s competitors are promoting their own competitive products.
The Panel finds that the Respondent’s use of the disputed domain names cannot therefore constitute use of the disputed domain names in the bona fide offering of the goods.
Conversely, the Panel finds that the Respondent registered the disputed domain names with the Complainant in mind and with the intention of capitalizing on the reputation of the Complainant within the meaning of paragraph 4(b)(iv) of the Policy.
The Panel finds that the above constitutes registration and use in bad faith pursuant to the third requirement of paragraph 4(a) 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 names , and be transferred to the Complainant.
Alexandre Nappey
Sole Panelist
Date: March 20, 2018
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