The Complainants (referred to herein as the singular “Complainant”) are Mozilla Foundation and Mozilla Corporation, United States of America (“United States”), represented by Hogan Lovells (Paris) LLP, France.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2019. On June 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 25, 2019, 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 June 27, 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 July 1, 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 July 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 25, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 15, 2019.
The Center appointed Evan D. Brown as the sole panelist in this matter on August 15, 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 a non-profit organization that is best known for creating the widely-used Firefox Internet browser. The Complainant has secured ownership of numerous trademark rights in the term MOZILLA in many jurisdictions around the world. For example, the Complainant owns United States Trademark Registration Number 2,815,227 for the mark MOZILLA (issued on February 17, 2004, alleging a date of first use in commerce in 1998). The Respondent registered the disputed domain name on February 7, 2017. The disputed domain name resolves to webpages containing “dynamic advertising”. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely that:
(i) the disputed domain name is identical 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; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Preliminary Issue – Consolidation – Multiple Complainants
The Mozilla Foundation and the Mozilla Corporation have jointly brought this action, on the basis that the Mozilla Corporation is a wholly-owned subsidiary of the Mozilla Foundation, and that the Mozilla Foundation, the owner of the trademark on which this action is based, has empowered and authorized the Mozilla Corporation to use all of its trademarks worldwide by virtue of a license agreement between them.
Under paragraph 1.4.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “[a] trademark owner’s affiliate such as a subsidiary of a parent or of a holding company, or an exclusive trademark licensee, is considered to have rights in a trademark under the UDRP for purposes of standing to file a complaint”. Based on this relationship between the two parties, the Panel finds that the Mozilla Foundation and the Mozilla Corporation have a sufficient common legal interest in the trademark imitated in the disputed domain name in order to file a joint Complaint. Also, the Panel finds that the Mozilla Foundation and the Mozilla Corporation have a specific common grievance against the Registrant, and it would be equitable and procedurally efficient to allow consolidation in these circumstances. Accordingly, consolidation is proper in this case. See paragraph 4.11 of the WIPO Overview 3.0. B. Identical or Confusingly Similar
The Complainant has rights in the MOZILLA mark, as evidenced by the trademark registrations that predate registration of the disputed domain name. The mark has also been in use for many years. The disputed domain name is confusingly similar to this mark. It contains the phonetic equivalent of the mark, differing in appearance by only one letter, accompanied by the generic Top-Level Domain (“gTLD”) “.org”. The gTLD “.org” may be disregarded for the purpose of comparing the disputed domain name with the Complainant’s mark under paragraph 4(a)(i) of the Policy. Accordingly, the Panel finds in favor of the Complainant on this first element of the Policy. C. Rights or Legitimate Interests
The Complainant will be successful under this element of the Policy if it makes a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name, and if that prima facie showing remains unrebutted by the Respondent. The Complainant asserts, among other things, that the Respondent (1) is not a licensee of the Complainant, (2) has not been authorized by the Complainant to make any use of its MOZILLA trademark, in a domain name or otherwise, and (3) has caused the disputed domain name to be redirected to dynamic advertising websites from which the Respondent or a third party is clearly obtaining financial gain. These assertions establish the Complainant’s prima facie case. The Respondent has not answered the Complainant’s assertions, and, seeing no basis in the record for that prima facie showing to be overcome, the Panel finds that the Complainant has satisfied this second Policy element. D. Registered and Used in Bad Faith
The Panel finds that the Respondent registered the disputed domain name in bad faith. The Panel agrees with the Complainant’s assertions that the following demonstrate bad faith registration in the circumstances of this case:
- the Complainant’s MOZILLA trademark is highly distinctive and has acquired considerable renown and goodwill worldwide, as a result of its continuous and extensive use for over 15 years in connection with computer and Internet-related products and services;
- the domain name consists of an obvious typographical error of the Complainant’s trademark; and
- the Respondent’s use of a privacy protection service to conceal its identity.
The Panel also finds that the Respondent used the disputed domain name in bad faith. The Respondent is using the disputed domain name to redirect Internet users to advertising websites. Such use of the disputed domain name – from which the Respondent is seeking to obtain financial gain derived from the goodwill and reputation attached to the Complainant’s trademark – constitutes strong evidence of bad faith. By registering and using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s MOZILLA trademark as to the source, sponsorship, affiliation, or endorsement of its website or other online location. The Panel finds the Complainant’s assertion – that the Respondent is deliberately taking advantage of obvious and common typographical errors often made by Internet users searching for the Complainant to divert them to its website – likely to be true.
Accordingly, the Complainant has satisfied this third Policy element. 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.
Evan D. Brown
Sole Panelist
Date: August 30, 2019
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