The Complainant is Landis+Gyr AG, Switzerland, represented by SafeNames Ltd., United Kingdom.
The Respondent is Sibabalwe Radebe, South Africa. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2020. On June 18, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 19, 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 June 22, 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 June 24, 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 July 2, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 22, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 23, 2020. The Center appointed John Swinson as the sole panelist in this matter on August 5, 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 Landis+Gyr AG, a company incorporated in Switzerland. According to the Complaint, the Complainant is a publicly traded multinational corporation that offers energy management solutions and products to customers in various countries. The Complainant provides a wide range of devices including communication units, electricity meters and heating and cooling meters. According to the Complaint, the Complainant has over 5,500 employees, had a revenue of USD 1699 billion in financial year 2019 and has received numerous awards in the field of energy management technology. The Complainant is the owner of a number of registered trade marks for LANDIS & GYR and LANDIS+GYR, the earliest of which is International registered trade mark number 253936 for LANDIS & GYR, registered on March 27, 1962 (the “Trade Mark”). The Respondent is Sibabalwe Radebe, an individual of South Africa. No response was received from the Respondent and therefore little information is known about the Respondent. The Disputed Domain Name was registered on March 6, 2020. The Domain Name does not currently resolve to an active site. 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions. Identical or Confusingly Similar The Disputed Domain Name is identical to the Complainant’s mark but for the reversal of the letters ‘i’ and ‘s’ and the Top-Level Domain (“TLD”) “.com”. The Disputed Domain Name is a clear example of typosquatting as described in section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0.) The Disputed Domain Name is therefore confusingly similar to the Trade Mark. Rights or Legitimate Interests The Respondent has no rights or legitimate interests in the Disputed Domain Name for the following reasons: - To the best of the Complainant’s knowledge, the Respondent does not possess registered or unregistered trade mark rights in the term “landis & gyr”. - The Respondent has not been known as “landis & gyr”, is not affiliated with the Complainant and has not received a license or consent from the Complainant to use the Trade Mark. - Given the Disputed Domain Name does not resolve to an active website, there is no evidence that the Respondent has used or prepared to use the Disputed Domain Name in connection with a bona fide offering of goods or services. - The Respondent’s registration of a clear type-squatting variation of the Trade Mark as a domain name cannot amount to legitimate noncommercial or fair use, without intent for commercial gain to misleadingly divert consumers. Registered and Used in Bad Faith The Complainant’s Trade Mark registration predates the Disputed Domain Name’s registration by over 50 years. The Complainant has developed substantial goodwill and recognition in relation to its business and the Trade Mark, of which it is highly unlikely that the Respondent was unaware. The Complainant sent a cease and desist letter and follow-up notice to the Respondent, to which the Respondent did not reply. The Disputed Domain Name is clearly an example of typosquatting registered in connection with the Complainant’s brand. In addition, the Respondent appears to have registered another domain name A number of factors relating to the Respondent’s passive holding of the Disputed Domain Name demonstrate that the Disputed Domain Name is being used in bad faith. The Complainant submits that the Disputed Domain Name incorporates the Complainant’s highly distinctive Trade Mark and it is inconceivable that the Respondent was not aware of this mark when registering the Disputed Domain Name. The Complainant has not been able to find any evidence that the Respondent has used the Disputed Domain Name for a legitimate purpose. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and The onus of proving these elements remains on the Complainant even though the Respondent has not filed a response. A. Procedural Issues Failure to file a response The Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org,WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. Generally, the test for identity or confusing similarity involves a side-by-side comparison of the domain name and the trade mark to assess whether the trade mark is recognizable within the domain name (see section 1.7 of the WIPO Overview 3.0. In this case, the Respondent has reversed the order of the letters “i” and “s” in the Disputed Domain Name compared to the Trade Mark. The Respondent has not added any other terms to the Disputed Domain Name and the omission of the ampersand “&” from the Disputed Domain Name does not distinguish it from the Trade Mark. The Trade Mark is recognizable in the Disputed Domain Name. It is well established that where there is “typosquatting”, the domain name in question can be considered to be confusing similarly to the trade mark (Deutsche Bank Aktiengesellschaft v. New York TV Tickets Inc.,WIPO Case No. D2001-1314, DaimlerChrysler Corporation v. Worshipping, Chrisler, and Chr, aka Dream Media and aka Peter Conover,WIPO Case No. D2000-1272, and Playboy Enterprises v. Movie Name Company,WIPO Case No. D2001-1201). The Panel considers this to be a clear case of typosquatting. The Disputed Domain Name is confusingly similar to the Trade Mark. The Complainant is successful on the first element of the Policy. C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following: - The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The Disputed Domain Name does not resolve to an active website and does not appear to have ever been used in connection with any active website. - The Panel accepts the Complainant’s submission that the Complainant has not authorized or otherwise given the Respondent permission to use the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. As mentioned above, the Respondent does not appear to have made any use of the website at the Disputed Domain Name. - As previous UDRP panels have found, typosquatting does not constitute a legitimate use of the Disputed Domain Name (see, e.g., Edmunds.com, Inc. v. Yingkun Guo, dba This domain is 4 sale,WIPO Case No. D2006-0694; Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537). The Respondent had the opportunity to demonstrate their rights or legitimate interests, but did not do so. In the absence of a response from the Respondent, the prima facie case established by the Complainant has not been rebutted. In light of the above, the Complainant is successful on the second element of the Policy. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. Registration in bad faith The Complainant services a significant number of customers in a range of countries, owns various trade marks for LANDIS & GYR and LANDIS+GYR and has won numerous awards. The Panel accepts the Complainant’s submission that the Trade Mark has a strong reputation and is well-known throughout the world in the field of energy management. The Complainant’s registration of the Trade Mark predates the registration of the Disputed Domain Name by more than 50 years. Previous UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos) to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith (see section 3.1.4 of the WIPO Overview 3.0). Here, the Trade Mark is very distinctive, and the Panel can reasonably infer that the Respondent knew, or should have known, that its registration would be confusingly similar to the Trade Mark. Previous UDRP panels have also found that if a respondent has engaged in typosquatting, that may be sufficient to establish registration and use in bad faith (Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537; Edmunds.com, Inc. v. Yingkun Guo, dba This domain is 4 sale,WIPO Case No. D2006-0694; Sephora v. WhoisGuard,WIPO Case No. D2006-0845). As outlined above, the Panel considers this to be a clear case of typosquatting. Use in bad faith The Panel notes that although the Disputed Domain Name does not resolve to an active website, this non-use does not prevent a finding of bad faith under the doctrine of passive holding (see section 3.3 of WIPO Overview 3.0 and Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). Section 3.3 of the WIPO Overview 3.0 considers passive holding and explains that: “While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine 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 particular circumstances of this case which lead to a conclusion of bad faith use are: - the Trade Mark has a strong reputation and is widely known throughout the world, as evidenced by numerous registrations worldwide and the Complainant’s evidence of its reputation and size; - the Respondent has not submitted a response or provided any evidence of actual or contemplated good-faith use; - the Disputed Domain Name is almost identical to the Trade Mark; and - the Respondent did not reply to the cease and desist letter or the follow-up notice sent by the Complainant. The Complainant also submitted that the Respondent’s registration of the Disputed Domain Name and the domain name In light of the above, the Panel finds that the Complainant has succeeded on the third 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 John Swinson
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
Sole Panelist
Date: August 19, 2020
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