The Complainant is V.Ships Group Limited (IOM) of St John's, Isle of Man, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Demys Limited, United Kingdom.
The Respondent is Leo Ross, Ama ready made goods of Warrington, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2018. On October 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 16, 2018, 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 October 22, 2018, 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 23, 2018.
The Center verified that the Complaint together with the amended 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 25, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2018.
The Center appointed Nick J. Gardner as the sole panelist in this matter on November 30, 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 relevant facts are straightforward and can be summarized very briefly as follows:
The Complainant is a ship management company incorporated in 1984 and based in the United Kingdom. The Complainant supplies various marine services to the global shipping industry. The Complainant also manages a fleet of over 1,000 vessels and a crew roster of over 44,000. The Complainant registered the domain name in 1999 and has used it since then for its online communications and for its corporate internal and external email.
The Complainant is the registrant of European Union mark number 003064268 for the term V.SHIPS (the “V.Ships trademark”). It has a filing date of February 21, 2003, and was registered May 17, 2005.
The Disputed Domain Name was registered by the Respondent on September 11, 2018. It does not resolve to any active webpage. 5. Parties’ Contentions A. Complainant
The Complainant says that the Disputed Domain Name is confusingly similar to the V.Ships trademark in that it simply omits the period and substitutes a “z” for an “s” which is a minor typographical variation.
The Complainant says that the Respondent has no rights or legitimate interests in the term “V.Ships” or “VShips” or VShipz”.
The Complainant says that the Respondent’s registration and use of the Disputed Domain Name is in bad faith. It says it was likely chosen as a deliberate typographical variation of the Complainant’s name or trademark. The Complainant refers to various previous UDRP decisions as to passive holding of a domain name in this regard. B. Respondent
No Response has been filed. 6. Discussion and Findings Preliminary Matters
The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909). Substantive Matters
To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that:
(i) the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name;
(iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has rights in the V.Ships trademark. The Panel finds the Disputed Domain Name is confusingly similar to this trademark, being visually and phonetically similar. This comparison involves the omission of the period and the substitution of “z” for “s”. The Panel agrees in this regard with the approach set out in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) namely “1.9 Is a domain name consisting of a misspelling of the complainant’s trademark (i.e., typosquatting) confusingly similar to the complainant’s mark?
A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”.
It is also well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
Accordingly the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests
The Panel finds the V.Ships trademark is, on the evidence before the Panel, a term in which the Complainant has developed a significant reputation and where there is no evidence of anyone else using that term.
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the 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 domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the V.Ships trademark. The Complainant has prior rights in the V.Ships trademark which precede the Respondent’s acquisition of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith
On the evidence, the Respondent has made no use of the Disputed Domain Name in the time he has owned it. In the circumstances of this case the Panel adopts the approach set out in the WIPO Overview 3.0 at section 3.3 as follows:
“Can the ‘passive holding’ or non-use of a domain name support a finding of bad faith?
From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding.
While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put”.
In the present case, the Panel adopts this approach and notes in particular the Respondent’s failure to provide any evidence of actual or contemplated good-faith use.
Overall, it does not generally matter that the Respondent has not as yet used the Disputed Domain Name. “Passive holding” can itself amount to bad faith registration and use where the holding involves a domain name deliberately chosen because of its association with the Complainant. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574; Ladbroke Group Plc v. Sonoma International LDC,WIPO Case No. D2002-0131; Westdev Limited v. Private Data,WIPO Case No. D2007-1903; Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393; and Intel Corporation v. The Pentium Group,WIPO Case No. D2009-0273. Accordingly, and applying the principles in the above noted UDRP decisions the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith.
As a result the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled. 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.
Nick J. Gardner
Sole Panelist
Date: December 14, 2018
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