The Complainant is Veoneer Sweden AB of Stockholm, Sweden represented by Brimondo AB, Sweden.
The Respondent is Samuel Lawal of Lagos, Nigeria. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2019. On March 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 29, 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.
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 April 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 26, 2019.
The Center appointed Debrett Lyons as the sole panelist in this matter on May 3, 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
The factual findings pertinent to the decision in this case are that:
(1) the Complainant develops and sells technologically advanced automotive products to car makers by reference to the trade mark VEONEER (the “Trade Mark”);
(2) the Trade Mark is the subject, inter alia, of International (Madrid Protocol) Regn. No. 1438095, registered January 12, 2018;
(4) the disputed domain name was registered on November 19, 2018 but has not been used; and 5. Parties’ Contentions A. Complainant
The Complainant asserts trade mark rights in VEONEER. It holds an international registration for the Trade Mark and submits that the disputed domain name is confusingly similar to the Trade Mark.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name because it has no trade mark rights; is not known by the disputed domain name; and the disputed domain name has not been used. The Complainant alleges that there is no commercial or other relationship between the Parties and the Complainant has not authorized the Respondent to use the Trade Mark or to register any domain name incorporating the Trade Mark.
The Complainant alleges that the Respondent registered the disputed domain name in bad faith having targeted the Complainant’s business.
The Complainant accordingly requests the Panel to order transfer of the disputed domain name. B. Respondent
The Respondent did not submit a Response. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trade mark 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 name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
It is the responsibility of the Panel to consider whether the requirements of the Policy have been met, regardless of the fact that the Respondent failed to submit a response. Having considered the Complaint and the available evidence, the Panel finds the following: A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trade mark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to the trade mark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trade mark rights. It is accepted that a trade mark registered with a national or international trade mark authority is evidence of trade mark rights for the purposes of the Policy.1 The Complainant provides evidence of its International Registration of the Trade Mark and so the Panel finds that the Complainant has trade mark rights.
The disputed domain name makes a trivial alternation to the Trade Mark by replacing the letter “o” with the numeral zero. The compared terms are virtually identical, visually, and are likely to be pronounced the same way. Otherwise, the disputed domain name adds the generic Top-Level Domain (“gTLD”) “.com” which can be disregarded for the purposes of comparing the disputed domain name with the Trade Mark.2 The Panel finds that the disputed domain name is confusingly similar to the Trade Mark and so finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has the burden to establish that the Respondent has no rights or legitimate interests in the disputed domain name. Nevertheless, it is well settled that the Complainant need only make out a prima facie case, after which the onus shifts to the Respondent to rebut such prima facie case by providing evidence demonstrating rights or legitimate interests in the disputed domain name.3
Notwithstanding the lack of a response to the Complaint, paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
“(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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”.
The publicly available WhoIs data lists the disputed domain name registrant as “Samuel Lawal”, which does not suggest that the Respondent might be commonly known by the disputed domain name. The Panel finds no other evidence that the Respondent might be commonly known by the disputed domain name.
Further, the Complainant states that there is no association between the parties and there is nothing to contradict that claim. There is no evidence that the Respondent has any trade mark rights. The disputed domain name does not resolve to an active website and has not been otherwise used.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent in failing to reply to the Complainant’s contentions has not rebutted such prima facie case.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and so the Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out circumstances which shall be evidence of the registration and use of a domain name in bad faith. They are:
“(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 website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location”.
The evidence provided with the Complaint shows that the disputed domain name is linked to an email address. It is the Complainant’s apprehension that the linked email address will be used for a nefarious purpose. The evidence accompanying the Complainant also shows that the Respondent has registered other domain names which incorporate the trade marks of third parties.
This information does not, of itself, support a finding that the Respondent’s conduct falls under any of paragraphs 4(b)(i)-(iv) above. Nevertheless, the Panel finds as separate matters registration in bad faith and use in bad faith. The disputed domain name is such an obvious instance of typosquatting that it indicates that the Respondent targeted the Complainant and its Trade Mark at the time of registration later in the same year as the Complainant’s commencement of business, 2018. Furthermore, in spite of the fact that the disputed domain name has not been used, the Panel is prepared to find passive holding of the disputed domain name in bad faith in line with the cases which have followed the reasoning first laid out in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Whilst the Complainant’s business was founded less than two years ago, it has on the evidence enjoyed global success and now engages more than 8600 employees in 13 countries. The Panel finds that there is nothing which might support a possible future use of the disputed domain name in good faith.
The Panel finds that the Complainant has satisfied the third and final element 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 name be transferred to the Complainant.
Debrett G. Lyons
Sole Panelist
Date: May 15, 2019
1 See section 1.2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
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