Complainant is Navistar International Corporation, United States of America (“United States”), internally represented.
Respondent is Contact Privacy Inc. Customer 1246705277, Canada / ANA MARIA CARRASCO, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 15, 2020. On May 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 18, 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 May 21, 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 May 22, 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 May 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 15, 2020. Respondent did not submit any response. Accordingly, the Center notified the commencement of Panel appointment process on June 16, 2020. The Center appointed Ingrīda Kariņa-Bērziņa as the sole panelist in this matter on June 30, 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 an international truck and vehicle company headquartered in the United States and operating in numerous countries worldwide under NAVISTAR (the “NAVISTAR Mark” or “Mark”). In 2019, Complainant had net revenues of more than USD 11 billion and 12,300 active employees worldwide. Complainant is the proprietor of a number of trademark registrations in various jurisdictions, including the following: - United States Trademark Registration No. 1498530 for NAVISTAR (word mark), registered on August 2, 1988 for goods in class 12 and claiming a date of first use of December 9, 1985; and, - United States Trademark Registration No. 1472594 for NAVISTAR (word mark), registered on January 12, 1988 for services in class 36 and claiming a date of first use of February 21, 1986. Complainant operates its primary business website at the domain name Respondent registered the disputed domain name on March 18, 2020. It currently does not resolve to an active website. The record contains emails requesting payment from a customer of Complainant using an email address associated with the disputed domain name. 5. Parties’ Contentions A. Complainant Under the first element, Complainant states that its business originated in 1831, when Cyrus McCormack invented the first practical mechanical reaper for crop harvesting, and that today Complainant is a holding company whose subsidiaries operate in truck development. These entities produce commercial and military trucks, diesel engines, school and commercial buses, along with service parts. Complainant also offers financing services. Complainant changed its name to NAVISTAR in 1986 and engages in extensive advertising in the United States and elsewhere. It has registered the NAVISTAR Mark in more than 60 countries, and the NAVISTAR Mark has become well-known for the goods and services offered by Complainant. Under the second element, Complainant states that Respondent is not affiliated or related in any way to Complainant, and is not licensed or authorized to use the NAVISTAR Mark. The disputed domain name was registered on March 18, 2020, which is long after Complainant’s adoption, use and registration of the NAVISTAR Mark and long after this Mark became well-known as a source designator of Complainant’s goods and services. Respondent uses the disputed domain name to send emails to Complainant’s customers requesting payment by bank transfer to an account not controlled by Complainant. Also, Complainant states that the disputed domain name is confusingly similar to the NAVISTAR Mark, as it adds an additional letter “r” to Complainant’s Mark, which is typosquatting. Respondent is not generally known by the disputed domain name, and has not acquired any trademark or service mark rights in Complainant’s Mark. Complainant has not licensed or otherwise permitted Respondent to use the NAVISTAR Mark in connection with the website located at the disputed domain name. Therefore, Complainant has no rights or legitimate interests in the disputed domain name. Under the third element, Respondent registered and is using the disputed domain name in bad faith, as is evidenced by the fraudulent emails sent by Respondent to Complainant’s customer whereby Respondent impersonated a named employee of Complainant to attempt to divert money transfers due to Complainant. Such activities demonstrate that Respondent was aware of Complainant’s Mark and business at the time that the disputed domain name was registered. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Given the facts in the case file and Respondent’s failure to file a response, the Panel accepts as true the contentions in the Complaint. Nevertheless, paragraph 4(a) of the UDRP requires Complainant to make out all three of the following: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) Respondent has registered and is using the disputed domain name in bad faith. A. Identical or Confusingly Similar Complainant has provided evidence establishing that it has trademark rights in the NAVISTAR Mark through registrations in several jurisdictions, thereby satisfying the threshold requirement of having trademark rights for purposes of standing to file a UDRP case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.2.1. In comparing Complainant’s NAVISTAR Mark with the disputed domain name, the Panel finds that the disputed domain name is confusingly similar with the Mark. The disputed domain name contains the Mark in its entirety. The addition of the letter “r” constitutes typosquatting as it is an obvious misspelling of Complainant’s Mark, which is clearly recognizable within the disputed domain name. Section 1.7 of WIPO Overview 3.0 provides: “It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name.” Section 1.9 of WIPO Overview 3.0 provides: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.” It is the well-established view of UDRP panels that the addition of the generic Top-Level Domain (“gTLD”) to the disputed domain name does not prevent the disputed domain name from being confusingly similar to Complainant’s trademark (see WIPO Overview 3.0, section 1.11.1, and cases cited thereunder). Accordingly, the Panel finds that Complainant has established the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests The circumstances stated in the Complaint and evidence in support set forth in the Annexes to the Complaint indicate that Respondent has no rights or legitimate interests in the disputed domain name. The nature of the disputed domain name, which is an obvious misspelling of Complainant’s Mark, cannot constitute fair use because Respondent thereby effectively impersonates or suggests sponsorship or endorsement by Complainant, the trademark owner. See WIPO Overview 3.0, section 2.5.1. The Panel finds that there is no evidence that Respondent is commonly known by the disputed domain name or is using the NAVISTAR Mark with permission of Complainant. Rather, the record supports Complainant’s express assertion that such permission does not exist. Complainant’s rights in the NAVISTAR Mark predate the registration of the disputed domain name by over 30 years. The record contains evidence that Respondent used Complainant’s Mark to generate fraudulent emails attempting to divert payments from Complainant’s customer. The Panel finds that the evidence submitted by Complainant establishes a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. See WIPO Overview 3.0, section 2.13. Pursuant to WIPO Overview 3.0, section 2.1, and cases thereunder, where Complainant makes out a prima facie case that Respondent lacks rights or legitimate interests, the burden of production on this element shifts to Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Respondent, in failing to timely file a response, has not submitted any evidence or arguments demonstrating such rights or legitimate interests, nor has it rebutted any of Complainant’s contentions. There is no information available that would support a finding of a fair use of the disputed domain name. Considering the near identity between Complainant’s Mark and the disputed domain name and the fact that the disputed domain name was used for fraudulent purposes, there can be no finding of rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that Complainant has established the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Panel finds bad faith under Policy, paragraph 4(b)(iv). The record in the case demonstrates that Respondent chose the disputed domain name deliberately for the purpose of impersonating or attempting to create an association with Complainant. Complainant’s rights in the NAVISTAR mark predate by over 30 years the registration of the disputed domain name. The disputed domain name contains Complainant’s Mark in its entirety, with the addition of a letter “r” that Internet users might easily overlook, which is clearly an example of typosquatting. The Panel finds that such a registration creates a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4, describing the types of evidence that may support a finding of bad faith. Having established that the disputed domain name was registered in bad faith, the Panel next turns to the issue of whether Respondent has engaged in bad faith use of the disputed domain name. The Panel finds that Respondent has demonstrated bad faith use in using the disputed domain name to generate fraudulent emails to Complainant’s customer to attempt to divert payment. Respondent has failed to file any response or provide any evidence of actual or contemplated good faith use, and the circumstances do not make any such use plausible. The Panel therefore finds that Complainant has established the third element under paragraph 4(a) 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 Ingrīda Kariņa-Bērziņa
Sole Panelist
Date: July 10, 2020
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