The Complainant is Advanced New Technologies Co., United Kingdom, represented by Simmons & Simmons, China.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Jonathan Swan, 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 April 9, 2020. On April 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 9, 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 the Complainant on April 14, 2020 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 15, 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 the Respondent of the Complaint, and the proceedings commenced on April 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 11, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 19, 2020. The Center appointed Nick J. Gardner as the sole panelist in this matter on May 26, 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 The Complainant is a subsidiary of Ant Small and Micro Financial Services Group Co. Ltd (“Ant Financial”), the parent company of the Ant Financial Group. Ant Financial was established in October 2014 and is a technology company headquartered in Hangzhou, China. Ant Financial and its affiliates have since October 2014 operated the Alipay platform (at “www.alipay.com”), an online payment service launched in 2004 by Alibaba Group. The Alipay platform is one of the world’s leading third-party payment platform and includes partnerships with more than 250 financial institutions including leading banks and credit/debit card providers in China and internationally. Together with local e-wallet partners, the Alipay platform serves over one billion users in 55 countries and regions providing payment solutions for hundreds of thousands of third party merchants, covering a wide range of industries such as online purchases, digital communications, commercial services, air ticketing, and utilities. Ant Financial promotes its business via websites linked to the domain names The Complainant owns various trademarks for the words “Ant Financial” including, for example, ANT FINANCIAL, European Union trade mark No. 013532155 registered on June 12, 2015, and ANT FINANCIAL United Kingdom trademark No. 00003349833, registered on January 18, 2019. These trademarks are collectively referred to as the “ANT FINANCIAL trademark” in this decision. The Disputed Domain Name was registered on November 14, 2019. The filed evidence shows it has been linked to a website (the “Respondent’s Website”) which up until around April 7, 2020 displayed several links to advertising stock trading websites. With effect from April 7, 2020 the Respondent’s Website has untrue information concerning a forthcoming IPO (Initial Public Offering) of Ant Financial (in respect of which there are no confirmed plans) and seeks to persuade potential investors to provide personal information to sign up for an IPO fact sheet. 5. Parties’ Contentions A. Complainant The Complainant’s contentions can be summarized as follows. The Disputed Domain Name is confusingly similar to the ANT FINANCIAL trademark. The Respondent has no rights or legitimate interests in the term “ant financial”. In consequence, the Complainant alleges that the Disputed Domain Name was registered and is being used in bad faith. The Complainant says the deceptive nature of the Respondent’s Website is clear evidence of bad faith. It infers the Respondent’s motive was financial gain. It says the Respondent was effectively advertising stock trading services and is now phishing for personal information via publication of misleading information on an IPO. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Preliminary Matters The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909). The Panel also notes this is a case where one Respondent (“WhoisGuard Protected, WhoisGuard, Inc.”) appears to be a privacy or proxy service. The Panel in this case adopts the approach of most UDRP panels, as outlined in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 4.4.5, as follows: “Panel discretion In all cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed. Depending on the facts and circumstances of a particular case, e.g., where a timely disclosure is made, and there is no indication of a relationship beyond the provision of privacy or proxy registration services, a panel may find it appropriate to apply its discretion to record only the underlying registrant as the named respondent. On the other hand, e.g., where there is no clear disclosure, or there is some indication that the privacy or proxy provider is somehow related to the underlying registrant or use of the particular domain name, a panel may find it appropriate to record both the privacy or proxy service and any nominally underlying registrant as the named respondent.” In the present case, the Panel considers the substantive Respondent to be Jonathan Swan and references to the Respondent are to that person. Substantive Matters To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) the Disputed Domain Name is identical with 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; (iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has rights in the ANT FINANCIAL trademark. The Panel finds the Disputed Domain Name is confusingly similar to this trademark. Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). It is established in WIPO Overview 3.0 at section 1.7 that, where a domain name incorporates the entirety of a mark, or where at least a dominant feature of a mark is recognizable in a disputed domain name, the disputed domain name is considered to be confusingly similar to the mark. It is also established that the addition of a descriptive term (such as here “IPO” as an abbreviation for Initial Public Offering) to a disputed domain name has little, if any, effect on a determination of confusing similarity between the domain name and the mark (Quixtar Investments, Inc. v. Dennis Hoffman,WIPO Case No. D2000-0253); furthermore, mere addition of a generic or descriptive term does not prevent a finding of confusing similarity under the first element (PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189). It is also well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429. Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests The Panel finds the ANT FINANCIAL trademark is, on the evidence before the Panel, a term in which the Complainant or its affiliates has developed a significant reputation. Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name: (i) before any notice to the respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the ANT FINANCIAL trademark. The Complainant has prior rights in the ANT FINANCIAL trademark which precede the Respondent’s acquisition of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the Disputed Domain Name. Accordingly, the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith In the present circumstances, the evidence as to the extent of the reputation the Complainant and its affiliates enjoy in the ANT FINANCIAL trademark, and the fact that the Disputed Domain Name was linked to the Respondent’s Website which contains untrue information about a supposed IPO of Ant Financial lead the Panel to conclude the registration and use were in bad faith. Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location. In the present circumstances the Panel agrees with the Complainant that factor (iv) applies as the Respondent was seeking to achieve some form of commercial gain by promoting stock trading websites via the Respondent’s Website. Further the more recent activity on the Respondent’s Website appears to be some form of “phishing” scheme which is further evidence of bad faith – see Australia and New Zealand Banking Group Limited v. Bashar Ltd,WIPO Case No. D2007-0031, and the cases therein referred to, for further analysis of why “phishing” activities amount to use in bad faith. See also Grupo Financiero Inbursa S.A. de CV v ibuirisa,WIPO Case No. D2006-0614 to similar effect. The Panel also notes that the Respondent has not filed a Response and hence has not availed himself of the opportunity to present any case of good faith that he might have. The Panel infers that none exists. Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) of the Policy has been fulfilled. 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 Nick J. Gardner
Sole Panelist
Date: June 8, 2020
Full & Egal Universal Law Academy