The Complainant is T. Rowe Price Group, Inc., United States of America (“United States”) represented by Winterfeldt IP Group PLLC, United States.
The Respondent is On behalf of OWNER, c/o United States / Tulip Trading Company, Saint Kitts and Nevis. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Key-Systems GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 10, 2019. On April 11, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 15, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 16, 2019 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 April 16, 2019.
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 April 25, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 15, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 17, 2019.
The Center appointed Gareth Dickson as the sole panelist in this matter on May 28, 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 Complainant is T. Rowe Price Group, Inc., a United States corporation with its global headquarters in Baltimore, Maryland. It offers a range of global investment management products, tools, and services.
The Complainant has used the trade mark T. ROWE PRICE in the United States since 1937 and is also the owner of a number of trade mark registrations for T. ROWE PRICE including United States registration number 2785262, registered on November 25, 2003, and European Union trade mark number 002176642, registered on September 30, 2002 (the “Mark”).
The Domain Name was registered on October 12, 2017. The Domain Name has resolved to a number of different websites, some of which appear to earn revenue for the Respondent by redirecting Internet users to websites not connected with the Complainant.
The Respondent appears to be the registrant of a number of domain names that incorporate third party trade marks or misspellings of the same. The Respondent has also been the losing respondent in a number of previous complaints brought under the Policy. 5. Parties’ Contentions A. Complainant
The Complainant submits that the Domain Name is confusingly similar to its T. ROWE PRICE mark since the only differences between it and the Domain Name are the substitution of an “o” for the letter “p”, the absence of a “.” in the Domain Name, and the addition of the generic Top-Level Domain (gTLD) suffix “.com”. The Mark remains the dominant or principal component of the Domain Name.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name since has never been authorised by the Complainant to use the Mark and the Domain Name does not reflect the Respondent’s common name or organisation name. It contends that the Respondent must have been aware of the T. ROWE PRICE brand since the Domain Name is only valuable because of its association with that brand, on which the Respondent sought to capitalise financially by creating a likelihood of confusion with the Mark.
The Complainant also argues that the Respondent has registered and used the Domain Name in bad faith since it seeks to mislead Internet users and take advantage of the confusion caused by the similarity of the Domain Name to the Mark. It notes that the Respondent has been found to have registered and used domain names in bad faith in multiple previous complaints under the Policy. Accordingly it must be found to have registered and used the Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant bears the burden of proving that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
These criteria are cumulative. The failure of the Complainant to prove any one of these elements means the Complaint must be denied. A. Identical or Confusingly Similar
The Panel accepts that the Complainant is the owner of, and therefore has rights in, the Mark.
Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) provides that “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”. The Panel therefore accepts that the Domain Name is confusingly similar to the Mark since the trade mark T. ROWE PRICE is recognisable within the Domain Name. The removal of the symbol “.” and the substitution of an “o” for “p” in the Domain Name do not in any way prevent a finding of confusing similarity.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests
Although a complainant is required to demonstrate that a respondent has no rights or legitimate interests in respect of the domain name, as explained in section 2.1 of the WIPO Overview 3.0, the consensus view of previous UDRP panels is that where a complainant establishes a prima facie case that the respondent lacks rights or legitimate interests the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
In the current proceeding, the Complainant has established its prima facie case. It states that it has never authorised the Respondent to use the Mark, in a domain name or otherwise, and submits that the Domain Name does not reflect Respondent’s common name or organisation name. The Complainant also submits evidence that the Respondent earns money from the Domain Name’s redirection of Internet users to third party websites which themselves do not appear to have anything to do with the Complainant or its Mark. That cannot, in these circumstances, constitute a bona fide sale of goods or services or a legitimate noncommercial or fair use within the meaning of the Policy.
By not participating in these proceedings, the Respondent has failed to refute the Complainant’s prima facie case that it has met its burden under the second UDRP element. As clearly stated in section 2.1 of the WIPO Overview 3.0, “a panel’s assessment will normally be made on the basis of the evidence presented in the complaint and any filed response. The panel may draw inferences from the absence of a response as it considers appropriate, but will weigh all available evidence irrespective of whether a response is filed”.
Having reviewed and weighed the available evidence, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
As at the date of registration of the Domain Name, the Mark had been in use for over 80 years and had been registered at a variety of trade mark offices around the world, including in the United States and in the European Union. It is evident that the Domain Name has no meaning other than as a reference to the Complainant’s Mark and no value other than as a means of profiting from Internet users’ misspelling of it. The Panel therefore finds that the Respondent’s registration of the Domain Name was in bad faith.
The Panel also finds that the Domain Name is being used in bad faith. The unauthorised use of the Mark by the Respondent is inconsistent with the Complainant’s exclusive rights in that mark. The Panel finds that the Domain Name is being used in order to misrepresent that the websites to which it resolves are affiliated or endorsed by the Complainant.
Finally, the Panel notes that the Respondent has registered a large number of domain names which incorporate third party marks or misspellings of such marks, and that it has been found to have registered and used domain names in bad faith in multiple previous complaints under the Policy. While that evidence does not by itself prove registration and use of the Domain Name in bad faith per se, it is circumstantial evidence of such registration and use and, in the absence of any submissions from the Respondent, tends to confirm the Panel’s findings above.
As a result of the above, the Panel finds that the Domain Name has been registered and is being used 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 Domain Name be transferred to the Complainant.
Gareth Dickson
Sole Panelist
Date: June 11, 2019
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