The Complainant is Cloudflare, Inc., United States of America (“United States”), represented internally.
The Respondent is Anson Network Limited, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 8, 2019. On October 8, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 October 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 30, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 31, 2019. The Center appointed Alistair Payne as the sole panelist in this matter on November 8, 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 operates a business that provides software which monitors and controls online traffic to computer servers and computer anti-virus software. It has offices in 11 cities and a network that spans more than 80 countries and it provides services to approximately 10% of the Fortune 1,000 companies. The Complainant owns United States registered trade mark No. 4061249 for CLOUDFLARE that was registered on November 22, 2011, and European Union Trade Mark (“EUTM”) No. 009919275 that was registered on October 13, 2011, also for the CLOUDFLARE word mark. The disputed domain name was registered on March 10, 2017, and does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant submits that it owns registered rights in the CLOUDFLARE word mark as set out above. It says that the disputed domain name wholly incorporates its mark as a dominant and recognizable element and accordingly that it is confusingly similar to its CLOUDFLARE mark. It further says that in circumstances that the Complainant is the second largest Domain Name System (“DNS”) provisioner with 13% of the total DNS market, the incorporation of the additional term “dns” is descriptive of the services that the Complainant provides and therefore does not allow the Respondent to avoid the conclusion that the disputed domain name is confusingly similar to the Complainant’s registered trade mark. With regard to rights and legitimate interests, the Complainant says that the Respondent is not commonly known by the disputed domain name and has not made a bona fide use of it to date or provided evidence that it has made demonstrable preparations to do so. It further says that the Respondent is not a licensee of or otherwise affiliated with the Complainant and has not been authorised by the Complainant to use its CLOUDFLARE mark. In addition, says the Complainant, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. In terms of bad faith, the Complainant submits that its CLOUDFLARE mark is arbitrary and distinctive. It says that considering the Respondent’s passive use of the disputed domain name to redirect to an empty parking page and its failure to engage with the Complainant’s pre-action cease and desist letter, then the inference is that the Respondent is either holding the disputed domain name passively in bad faith, or registered the disputed domain name in order to prevent the Complainant from reflecting its mark in a corresponding domain name, or did so in order to disrupt the Complainant’s business and activities. Further says the Complainant, considering that the Respondent has registered a disputed domain name that is identical to the Complainant’s trade mark, then an intention of the Respondent to attract Internet users and consumers for commercial gain by creating a likelihood of confusion with the Complainant and its business can be inferred because the domain name is a clear example of cybersquatting. The Complainant submits that this is an example of passive holding in bad faith. To support this claim it says that its CLOUDFLARE mark is distinctive and has significant brand reputation and ranks 12th in the Cloud 100, Forbes Top Private Companies in cloud computing 2018. It says that the Complainant has failed to provide any evidence of actual or contemplated good faith use and has failed to respond to the Complainant’s cease and desist letter dated September 11, 2019. It also says that the Respondent is concealing its identity and is not ascertainable through a WhoIs search but was ascertainable after filing a form with GoDaddy for the purposes of this proceeding. It says that in view of the reputation attaching to the CLOUDFLARE mark and the services provided under it, it is implausible that there is any good faith use to which the disputed domain name could be used by the Respondent. Finally the Complainant says that it is more likely than not that the Respondent was well aware of the Complainant’s mark and registered the disputed domain name deliberately in bad faith in an effort to confuse Internet users into thinking that the disputed domain name, including the Complainant’s mark with the letters “dns”, could cause Internet users to think that the disputed domain name corresponds to the Complainant’s “dns” related services. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has demonstrated that it owns registered trade mark rights for its CLOUDFLARE mark in the United States under registered trade mark 4061249 for CLOUDFLARE that was registered on November 22, 2011, and under EUTM No. 009919275 that was registered on October 13, 2011. The disputed domain name wholly incorporates this mark together with the addition of the letters “dns”. The Panel finds that the disputed domain name is therefore confusingly similar to the Complainant’s mark. The inclusion of the letters “dns” in no way detract from a finding of confusing similarity. Accordingly, the Panel finds that the Complaint succeeds under the first element of the Policy. B. Rights or Legitimate Interests The Complainant has submitted that the Respondent is not commonly known by the disputed domain name and has not made a bona fide use of it to date or provided evidence that it has made demonstrable preparations to do so. It has further said that the Respondent is not a licensee of, or otherwise affiliated with, the Complainant and has not been authorised by the Complainant to use its CLOUDFLARE mark. In addition, the Complainant has submitted that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that the Complainant has made out a prima facie case under this element of the Policy. The Respondent has failed to respond to the cease and desist letter dated September 11, 2019, sent by the Complainant and neither has it filed a response in these proceedings. As a result, it has not rebutted the prima facie case made out by the Complainant and the Panel finds that the Complaint also succeeds under this element of the Policy. C. Registered and Used in Bad Faith The disputed domain name was registered on March 10, 2017, approximately six years after the Complainant’s trade marks were registered in 2011. The Complainant has submitted that it is the second largest DNS provisioner with approximately 13% of the total DNS services market and has provided evidence to support this claim including industry articles and service survey results. The Complainant has also noted that it ranks 12th in the Cloud 100, Forbes Top Private Companies in cloud computing 2018. In addition, the Panel notes that the Complainant operates a network across 80 countries with offices in 11 cities and therefore appears to be a large and established international business with a substantial position in the DNS services market. As a consequence of the Complainant’s size and spread in the market for DNS services and considering the high level of distinctiveness of the CLOUDFLARE mark in relation to DNS services, the Panel considers it more likely than not that the Respondent was well aware of the Complainant’s mark and business when it registered the disputed domain name. This view is only reinforced by the fact that the disputed domain name includes not only the Complainant’s mark but also the letters “dns” which are clearly descriptive of the services that the Complainant provides. The disputed domain name does not resolve to an active website. The Complainant asserts that this amounts to passive use by the Respondent in bad faith. The factors that UDRP panels have previously considered to amount to a passive holding in bad faith are set out at section 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and 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. The Panel has already found that the Complainant’s mark is highly distinctive in relation to dns services and has a significant position in the market for DNS services. The Complainant has failed to provide any evidence of actual or contemplated good faith use and has failed to respond to the Complainant’s cease and desist letter dated September 11, 2019. In addition, it appears that the Respondent has sought to conceal its identity by not allowing its corporate name to be ascertainable upon a WhoIs search although it was subsequently ascertainable after the Complainant filed a form with GoDaddy for the purposes of this proceeding. Overall, it seems to the Panel that considering the reputation attaching to the CLOUDFLARE mark and the DNS services provided by the Complainant under it and in view of the highly distinctive nature of the CLOUDFARE mark and also in view of the fact that the Respondent registered it together with an acronym descriptive of the Complainant’s services, it is implausible that there is any good faith use to which the disputed domain name could be put by the Respondent. As a result, the Panel finds that the Respondent both registered and used the disputed domain name in bad faith and the Complaint also succeeds under this 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 Alistair Payne
Sole Panelist
Date: November 22, 2019
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