The Complainant is KPMG International Cooperative, Netherlands (“Complainant”), represented by Taylor Wessing, United Kingdom.
The Respondent is WhoisGuard, Inc., Panama / Vanshita Sharma, Ms., India (“Respondent”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2020. On January 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 29, 2020, 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 Complainant on January 30, 2020 providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on February 3, 2020. 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 Respondent of the Complaint, and the proceedings commenced on February 5, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 25, 2020. On February 13, 2020, Complainant submitted a Supplemental Filing. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 27, 2020. The Center appointed M. Scott Donahey as the sole panelist in this matter on March 3, 2020. 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 Complainant is a network of audit, tax and advisory services, generally performed by certified public accountants who operate under the trademark KPMG. Complainant is recognized as one of the “Big Four” accounting and related services firms in the world. Complainant’s member firms operate in approximately 147 countries with more than 219,000 employees. Complainant has operated continuously under the trademark KPMG for more than 30 years. In 2018 the combined general revenues of the KPMG member firms were USD 28.96 billion. Complaint, Annexes 3, 4, 5, and 6. Complainant is the registrant of the trademark KPMG and licenses its use to its member firms worldwide. Examples of such trademark registrations are the United States trademark registration No. 2339547 for “KPMG” registered on April 11, 2000, and the European Union trademark registration No. 001011220 for “KPMG” registered on April 25, 2000. Complaint, Annex 7. Respondent registered the disputed domain name on January 1, 2020. Complaint, Annex 1. One of the current uses of the disputed domain name is to resolve to a “pay-per-click” landing page at “www.kp‑mg.com”. Another use of the disputed domain name is in an email address, info.job-offer@kp-mg.com. The company offering the job opportunity is the fictitious company “KPMG Oil and Gas Company Canada”. Using the address of Complainant’s office in Toronto, Canada, Respondent invites individuals to apply for a position with Complainant by submitting personal information, including a copy of the applicant’s passport by email to Respondent at the email address set out above. Some of the prospective “job candidates” have contacted Complainant’s Canadian member to either inform Complainant of the apparent scam or to inquire whether the job offer is in fact genuine. Complaint, Annexes 9, 10, and 11 and Supplemental Filing1 made February 13, 2020. 5. Parties’ Contentions A. Complainant Complainant asserts that the disputed domain name is either identical or confusingly similar to Complainant’s KPMG trademark. Complainant contends that Respondent has no rights or legitimate interests in respect of the use of the KPMG mark or the disputed domain name. Complainant alleges that Respondent has registered and is using the disputed domain name in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of the letters KP and MG separated by a hyphen (“KP-MG”) and followed by the generic Top-Level Domain (“gTLD”) “.com”. Complainant’s trademark is clearly recognizable within the disputed domain name. The Panel finds that the disputed domain name is confusingly similar to Complainant’s well-known trademark. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out 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; WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name, and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith Respondent has been using the disputed domain name to resolve to a pay-per-click website at which users might well expect to arrive at a website sponsored by or affiliated with Complainant. Additionally, Respondent has used the disputed domain name in an email address at which Respondent invited and received employment applications, including personal information and copies of passports, for positions at a fictitious business supposedly affiliated with Complainant, which positions are non-existent. Therefore, the Panel finds that the disputed domain name was 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 disputed domain name M. Scott Donahey 1 In the circumstances of this case, the Panel accepts Complainant’s Supplemental Filing. However, even if it had not been admitted, it would not have affected the outcome.
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
Sole Panelist
Date: March 11, 2020
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