1.1 The Complainant is Royal Unibrew A/S of Faxe, Denmark, internally represented.
1.2 The Respondent is Daniel Wallace of “Noord-Holland, Pakistan”. 2. The Domain Name and Registrar
2.1 The disputed domain name (the “Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 1, 2019. On February 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Dame. On February 1, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 7, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 27, 2019. On February 12, 2019, an informal email communication from a third-party was received by the Center claiming that it had received a written notice of the notification of the Complaint but that there was no person with the name “Daniel Wallace” at that location. No further Response was submitted. Accordingly, the Center notified the Parties that it would proceed to panel appointment on February 28, 2019.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on March 5, 2019. 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
4.1 The Complainant produces, markets, sells and distributes beverages such as beer, malt drinks and soft drinks, including soda water, mineral water and fruit juices, as well as cider and long drinks. It is active in a number of markets internationally. Its owns and maintains a website promoting its products that operates from the domain name.
4.2 The Complainant is the owner of various trade marks that incorporate or comprise the text “Royal Unibrew”. They include European Union trade mark registration No. 854698 for the word mark ROYAL UNIBREW, registered in classes 5 and 32, with a registration date of June 7, 2005. That European Union trade mark is a specific designation of an international registration that extends to a number of other territories.
4.3 The Domain Name was registered on December 16, 2018. Since that date it has been used for a website that purports to be the website of “Royal Unibrew A/S”. That website promoted a number of products ranging from agriculture and beverages to pork products and parafin wax. The “Contact US” page for the website referred to the “Royal Unibrew A/S Head Office” and lists the real head office address for the Complainant in Denmark as well as its real “CVR” (i.e. central business register) number. The bottom of each page of that website also contains a copyright notice referring to “Royal Unibrew A/S”.
4.4 According to the Complainant although the Domain Name has only been registered for a few months, over the last two years potential customers of beer and energy drinks products have been contacted by an individual claiming to be “Daniel Wallace” who has offered them those products for sale. Persons willing to purchase these products are issued invoices and then asked to pay 40% of that invoice upfront.
4.5 As at the date of this decision the Domain Name is being used to divert Internet users to the Complainant’s own website. 5. Parties’ Contentions A. Complainant
5.1 The Complainant gives details of its business and marks and how the Domain Name has been used. It contends that the second level of the Domain Name comprises its company name and mark with the letters AS (usually taking the form “A/S”) being a common abbreviation for “Aktieselskab”, which designates a Danish private limited company. Alternatively, the Complainant likens this to a case of “typosquatting”. It thereby contends that the Domain Name and its trade mark are identical.
5.2 Given the use made of the Domain Name, the Complainant contends that the Respondent is “intentionally trying to deceive Internet users to believe that the website under the [Domain Name] is owned and maintained by the Complainant”. This is said to be for the following purpose:
“to acquire, through deception, personal information by masquerading as someone trustworthy with a real need for such information (phis[h]ing) and/or have been done to deceive customers to believe they are entering into business with the Complainant, and thereby profit from the reputation of the Complainant’s well-known trade[]mark.”
5.3 As a consequence the Respondent is said not to have any right or legitimate interest for the purposes of the Policy and it is claimed that the Domain Name was registered and has been used in bad faith. B. Respondent
5.4 The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent the Panel from determining the dispute based upon the Complaint, notwithstanding the failure of any person to lodge a Response.
6.2 To succeed in these proceedings, the Complainant must make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 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”. A. Identical or Confusingly Similar
6.4 The Complainant has demonstrated registered trade mark rights in the term “Royal Unibrew”. The Panel accepts that the most sensible reading of the Domain Name is as the terms “Royal Unibrew”, “AS” (being an abbreviation for “Aktieselskab”) and the “.com” generic Top-Level-Domain (“gTLD”). Given this, the trade mark is clearly recognisable in the Domain Name. It follows that the Domain Name is “confusingly similar” (as that term is understood under the Policy) to a trade mark in which the Complainant has rights.
6.5 For the reasons that it rehearsed previously in Philip Morris USA Inc. v. Marlboro Beverages / Vivek Singh,WIPO Case No. D2014-1398, the Panel considers this to be a case of confusing similarity, rather than identity, between the trade mark and the Domain Name. But whichever is the case makes no practical difference. Either way the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests and Registered and Used in Bad Faith
6.6 It is usual for panels under the Policy to consider the issues of rights or legitimate interests and registration and use in bad faith in turn. However, in a case such as this it is more convenient to consider those issues together.
6.7 The Panel accepts that the Domain Name has been registered and used with the intention of furthering some sort of a fraudulent scheme whereby the registrant has sought to impersonate the Complainant.
6.8 Exactly what from that scheme takes is not particularly clear. The Complainant claims that a person using the name of the registrant of the Domain Name has previously issued “false pro forma” invoices for which payment is sought in advance. By describing these invoices as “false” (and also contending that this activity has been reported to the Danish police) the Complainant appears to suggest that these goods were not provided, but the Complainant does not go on to expressly allege this. Further, this activity appears to have pre-dated the registration of the Domain Name and so far as the Domain Name is concerned the Complainant merely contends that it and the associated website are being used for phishing purposes.
6.9 Further, the website that used to operate from the Domain Name was very unsophisticated both in form and content, particularly when compared to the genuine website of the Complainant.
6.10 Nevertheless, the use of the Complainant’ name, address and other corporate information on the website operating from the Domain Name makes it quite clear that the Respondent is not just using a name that is similar to the Complainant but is deliberately seeking to impersonate the Complainant and to hide who he really is.
6.11 There is no right or legitimate interest in holding a domain name for the purpose of furtherance of a fraud through impersonation. Further, the registration and use of a domain name for such a purposes involves registration and use in bad faith (see, for example, Vestey Group Limited v. George Collins,WIPO Case No. D2008-1308).
6.12 Further and in any event, the Respondent’s operation of a website that purported to be that of the Complainant when it was not, is activity that also falls within the scope of paragraph 4(b)(iv) of the Policy.
6.13 In the circumstances, the Panel finds that the Complainant has made out the requirements of paragraphs 4(a)(ii) and 4(a)(iii) of the Policy. 7. Decision
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.
Matthew S. Harris
Sole Panelist
Date: March 14, 2019
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