The Complainant is salesforce.com, inc., United States of America, represented by Winterfeldt IP Group PLLC, United States of America (“United States”).
The Respondent is Name Redacted / Contact Privacy Inc. Customer 124464076, Contact Privacy Inc. Customer 1244640769, Canada. 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 29, 2019. On October 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 30, 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 October 31, 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 October 31, 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 the Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for the 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 November 15, 2019. On November 18, 2019, an email was received from the individual named in the registrar verification, stating that he is not familiar with the disputed domain name and that his identity is being used without his consent. In accordance with the Rules, paragraph 5, the due date for Response was December 5, 2019. No Response was filed. The Center appointed Jon Lang as the sole panelist in this matter on December 11, 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, founded in 1999, provides customer relationship management (CRM) and a variety of other cloud-based software to over 150,000 companies worldwide. It has its global headquarters in San Francisco with regional headquarters in Morges (Switzerland), Hyderabad (India), and Tokyo (Japan) and has other offices located elsewhere. The Complainant had revenue of USD 13.28 billion in the 2019 fiscal year, has 35,000 employees and the SALESFORCE brand was ranked the 75th best global brand by Interbrand in 2018. The Complainant owns a number of trademark registrations around the world for SALESFORCE and SALESFORCE.COM (the SALESFORCE Marks) including SALESFORCE (United States Reg. No. 2,964,712) used in commerce since September 27, 1999, and registered on July 5, 2005, and SALESFORCE.COM (United States Reg. No. 2,684,824) used in commerce since September 27, 1999, and registered on February 4, 2003. The Complainant also owns numerous domain names that include the SALESFORCE Marks including The Domain Name The following is a summary of the Complainant’s main contentions. General The Complainant has promoted the SALESFORCE Marks globally and they have widespread recognition in the United States, Canada, and worldwide. SALESFORCE goods and services are well-publicized in the media and the goodwill generated by the Complainant’s marks and business practices has earned it praise from organizations and news outlets worldwide. The Domain Name was registered some considerable time after the SALESFORCE Marks were first used by the Complainant. The Domain Name is being used by the Respondent to impersonate a member of the Complainant’s billing team to send emails, using an “@salezforce.com” extension, to the Complainant’s customers asking for payment of fake and fraudulent invoices. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights The only difference between the Complainant’s SALESFORCE mark and the Domain Name is that the latter substitutes the second “s” with the letter “z”. The addition of the Top-Level domain (“TLD”) “.com” is irrelevant in determining whether a domain name is confusingly similar to a mark. The Domain Name is confusingly similar to the SALESFORCE.COM mark for the same reason. The Domain Name contains the SALESFORCE and SALESFORCE.COM marks in their entirety (or an obvious typographical variation thereof), which is sufficient to show that the Domain Name is identical or confusingly similar to the SALESFORCE Marks. The Respondent has no rights or legitimate interests in respect of the domain name The Respondent has no rights or legitimate interests in the Domain Name. The Respondent is not associated or affiliated with the Complainant and has never been authorized by the Complainant to use the SALESFORCE Marks. The Domain Name was registered well after the Complainant had registered and/or used the SALESFORCE Marks and established extensive goodwill. The Respondent has willfully adopted the SALESFORCE Marks within the Domain Name in an attempt to unfairly capitalize on the valuable goodwill of the Complainant. The Domain Name does not reflect the Respondent’s common name or organization name. The Domain Name is used in connection with a fraudulent scheme intended to deceive the Complainant’s customers into sharing their sensitive financial information or paying money to the Respondent to satisfy false and fraudulent invoices. The Respondent’s use of the Domain Name does not constitute a bona fide sale of goods or services or commercial use, nor a legitimate non-commercial or fair use. The domain name was registered and is being used in bad faith The Respondent has registered and used the Domain Name in bad faith (Section 4(b)(iv) of the Policy). The Domain Name is being used to perpetrate a fraudulent email scheme intended to induce the Complainant’s customers to pay fake invoices to the Respondent for financial gain, which is clear evidence of bad faith registration and use. The Respondent has registered and used the Domain Name for per se illegitimate activity, namely fraud, which is manifestly considered evidence of bad faith. Furthermore, the Complainant’s rights in the SALESFORCE Marks are so well established, and its SALESFORCE brand has achieved such a level of recognition and fame, that the Respondent has no colorable argument that he was unaware of the brand. The Domain Name is only valuable because of its association with the SALESFORCE brand. The Respondent was on notice of the Complainant’s SALESFORCE Marks prior to registering the Domain Name given the well-known nature of the Complainant’s marks. The Respondent willfully registered the Domain Name to unfairly capitalize on the valuable goodwill the Complainant has built in its SALESFORCE Marks with the intention of confusing consumers and engaging in illegitimate activity. B. Respondent Whilst no Response was filed, as noted above, the individual named in the registrar verification, sent an email to the Center on November 18, 2019 stating: “Dear Sir / Madam, There followed an exchange of emails between the Center and individual named in the registrar verification. 6. Discussion and Findings Preliminary Issue In all likelihood, the true registrant of the Domain Name used the name and contact details of a third party (i.e. the individual named in the registrar verification) when registering the Domain Name. In the light of this potential identity fraud, the Panel has decided to redact that third party’s name and contact information from this Decision and reference to the Respondent herein shall be to the unknown person responsible for registration and use of the Domain Name, not the person whose name and contact details have been wrongly used.1 The Policy Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is: (i) identical or confusingly similar to a trademark or service mark in which a complainant has rights; and (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith. A complainant must prove each of these three elements to succeed. A. Identical or Confusingly Similar The Complainant is the owner of the SALESFORCE Marks and thus clearly has rights in them. When considering the question of confusing similarity (or identicality), the Panel may, for comparison purposes, ignore the generic TLD extension, but is not required to do so if it is relevant. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0) is designed to assist awareness of panel views on certain questions that commonly arise in proceedings under the UDRP. Paragraph 1.11.3 provides that “Where the applicable TLD and the second-level portion of the domain name in combination contain the relevant trademark, panels may consider the domain name in its entirety for purposes of assessing confusing similarity (e.g., for a hypothetical TLD ‘.mark’ and a mark ‘TRADEMARK’, the domain name (See also Tesco Stores Limited v. Mat Feakins,WIPO Case No. DCO2013-0017, Ignoring the TLD “.com” in the case of the SALESFORCE mark but not in the case of the SALESFORCE.COM mark, the Domain Name comprises only the SALESFORCE Marks except that the second letter “s” has been replaced by the letter “z”. Given that the SALESFORCE Marks and Domain Name are not identical, the issue of confusing similarity must be considered. Application of the confusing similarity test under the UDRP typically involves a comparison, on a visual or aural level, between the trademark and the domain name. The SALESFORCE Marks are clearly recognizable within the Domain Name. The substitution of the letter “s” for the letter “z” does little to diminish the visual impression created by the Domain Name, i.e. that it is identical to, or very closely similar such that it could be mistaken for being identical to the Complainant’s SALESFORCE Marks. To create such a visual impression was no doubt the very purpose in the Respondent choosing the Domain Name that it did. Given the substitution of letter (“s” to “z”), the Domain Name and marks cannot be said to be identical, but the Domain Name is certainly confusingly similar to the Complainant’s SALESFORCE Marks. The Panel finds that the Domain Name is confusingly similar to the SALESFORCE Marks for the purposes of the Policy and thus paragraph 4(a)(i) of the Policy has been established. B. Rights or Legitimate Interests By its allegations, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name and, as such, the burden of production shifts to the Respondent to come forward with arguments or evidence demonstrating that it does in fact have such rights or legitimate interests. The Respondent has not done so and accordingly, the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent indeed lacks rights or legitimate interests in the Domain Name. Despite the lack of any answer to the Complaint however, the Panel is entitled to consider whether there would be anything inappropriate in such a finding. The answer to that question must be a resounding “No”. It is difficult to conceive of any argument that could be advanced in the circumstances that would assist the Respondent. This is a clear case of typosquatting. In the circumstances, the Panel concludes that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Domain Name is confusingly similar to the SALESFORCE Marks and may well be mistaken as being identical. The Respondent has no legitimate rights or interests in the Domain Name. In fact, its only or prime interest in the Domain Name would appear to be illegitimate, given its impersonation of the Complainant for its own nefarious purposes as described earlier. No Response to the Complaint has been filed, no doubt because there is no response to the Complaint the Respondent could give which might cast doubt on the contention that registration and use of the Domain Name has been in bad faith. Moreover, as described earlier, not only has the Respondent set out to impersonate the Complainant, the Respondent also appears to have used the name and contact details of a third party to do so. The Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name 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 Jon Lang 1 In light of the potential identity theft, the Panel has redacted this Respondent’s name from the decision. However, the Panel has attached as Annex 1 to this decision an instruction to the Registrar regarding transfer of the “Disputed Domain Name”, which includes the name of the Respondent. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated Annex 1 to this decision shall not be published due to the exceptional circumstances of this case. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,WIPO Case No. D2009-1788.
Today I received by DHL courier your 15 November 2016 letter in the above named case.
In response:
I am not familiar or in any way related with the domain name Salezforce.com, I did not register that domain name, nor am I using it, nor am I in any way associated with it.
Furthermore, I did not receive, as you allege, any electronic copy of your alleged complaint, which is no surprise: I am not familiar or in any way associated with the email address [email address] as stated in your ‘contact details’.
The obvious conclusion thus is that the subject matter – which I am not familiar with since I did not receive your complaint – thus follows from identity theft, with another party falsely making use of my good name.
I of course couldn’t care less with whatever you do with ‘the disputed domain name’. You may transfer it, cancel it, burn it, feel free to do with it whatever you like, all of this is none of my business.
Sincerely,”
Sole Panelist
Date: December 23, 2019
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