The Complainant is VFS Global Services Private Limited, India, represented by Aditya & Associates, India.
The Respondent is WhoisGuard, Inc., Quijano & Associates, Panama (“the first Respondent”) / Narendra Singhmanushi, India (“the second 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 August 11, 2020. On August 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 11, 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 August 26, 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 August 28, 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 September 3, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 23, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2020. The Center appointed Shwetasree Majumder as the sole panelist in this matter on October 1, 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 was originally incorporated as Fastrac Visa Facilitation Services Pvt. Ltd on July 10, 2001. Since January 2009, through a series of name changes and organizational restructuring has come to be known as VFS Global Services Private Limited. The Complainant with its registered office in Mumbai is a global business process (outsourcing and technology services specialist) for and in business of providing technological and logistics support services to various foreign embassies and diplomatic missions in India and other parts of the world. These include providing administrative support relating to the receipt processing of visa applications. The Complainant through its website “www.vfsglobal.com” provides all country specific visa information, visa requirements, application procedure, fee structure, scheduling of interviews etc. According to the Complainant, the said website is being accessed by millions every day who seek visa (of various categories and purpose) for United States of America (“USA”), United Kingdom (“UK”), Canada and other countries, having been exclusively authorized by the Government of these countries through their embassies. The Complainant claims to have conceived and adopted the trademark VFS in 2003. It contends that the said trademark is being used with or without the word GLOBAL as an essential part of the Complainant’s corporate name / trading name in relation to the services being rendered by it. The Complainant and its group companies have obtained statutory registrations for the trademarks, VFS/ VFS GLOBAL, both as a word per se and in a distinctive form/ manner in various countries across the world, including India. Copies of some of the Complainant’s registrations for the VFS/ VFS GLOBAL trademarks and their permutations and combinations have been attached as Annex 6 to the Complaint. The Complainant has provided detailed evidence of its rights in the VFS/ VFS GLOBAL trademarks in India on the basis ofmultiple trademark registrations, the earliest of which can be traced back to the year 2003, (Indian Registered Trademark No.1255698 in International Class 35 filed on December 16, 2003 for the label mark VFS), well before the Respondent registered the disputed domain name on March 2, 2020. According to the Registrar the disputed domain name, As per the Complainant, the privacy service, being served with a Trademark Complaint and Cease and Desist Notice did not provide the registrant details constraining it to institute the present proceedings. Communication as exchanged between the Complainant and the first Respondent was attached as Annex I A-C of the Complaint. References to the “Respondent” in this decision are to the first and second Respondents in the present proceedings, except where the context otherwise indicates. The disputed domain name resolves to a standard registrar parking website featuring pay-per-click (PPC) hyperlinks (one of which made bears the Complainant’s name / trademark VFS), providing services in competition with the Complainant. Internet users are being redirected to third-party websites, not affiliated with the Complainant. A copy of the landing page of the disputed domain name has been attached as Annex 14 to the Complaint. The following disclaimer also appeared in English at the foot of the page: “The Sponsored Listings displayed above are served automatically by a third party. Neither Parkingcrew nor the domain owner maintain any relationship with the advertisers.” In addition to the disputed domain name, the Respondent, and its associates are also misrepresenting themselves to be the authorized service provider / connected with the Complainant by issuing fake job interview invitations to innocent job seekers on behalf of an Australian Company, KALT GAS & OIL, using the email “[…]@vfsglobalhelpline.org” which incorporates both the Complainant’s registered trademark VFS / VFS GLOBAL and the name of an employee of the Complainant, Stephen Rayan. The Respondent and its associates also appear to be inducing the said unsuspecting job seekers to pay a certain amount of money as job and visa processing fees. Copy of enquiry emails sent by the job seekers to the Complainant inquiring about the authenticity and the correctness of the representations of the Respondent and the clarifications issued by the Complainant stating that the said activities are fraudulent are attached as Annex 15A-E to the Complaint. 5. Parties’ Contentions A. Complainant The Complainant contends that the essential and significant part of the disputed domain name, The Complainant argues that the disputed domain name The Complainant has also relies on the decision dated March 14, 2013 issued by National Internet Exchange of India in VFS Global Services Pvt Ltd v. Mr. Rahul Sharma, INDRP Dispute Case No. INDRP/461 and the previous UDRP decision VFS Global Services Private Limited, VFS Bangladesh (Private) Limited v. Binary Quest, Ltd,WIPO Case No. D2014-1324 wherein the disputed domain names, The Complainant contends that its use and registration of the trademarks VFS / VFS GLOBAL, including the registration of its domain name The Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name as VFSGLOBAL is the predominant, essential and only relevant component of the disputed domain name and does not in any way reflect the Respondent’s name, the Respondent does not own any trademark registrations for VFS / VFSGLOBAL in any country and the Respondent has not acquired any reputation and/or goodwill in VFS/ VFSGLOBAL. The Complainant contends that it has not authorized or granted the Respondent any right, license, authorization or consent to use its VFS / VFSGLOBAL trademarks in India or elsewhere. The Complainant argues that the use of the disputed domain name, The Complainant states that an Internet user usually types “vfs”, “vfs help”, “vfs support” or “vfsvisa” etc. or put these words as search strings in search engines like Google / Yahoo etc. In such an event, the Complainant contends that Internet users might be taken to the Respondent’s web site which is not authorized to provide any information on visa related services by any of the diplomatic missions or the Government of any country which undoubtedly leads to deception and confusion amongst such users. The Complainant states that by the unauthorized and fraudulent use of the disputed domain name, the Respondent is trading upon the reputation and goodwill of the Complainant’s distinctive trademarks and its services which is mainly provided through its website “www.vfsglobal.com”. The Complainant states that the disputed domain name The Complainant accordingly claims that there is no basis on which the Respondent could assert that the disputed domain name has been used or is being used in connection with any bona fide offering of goods or services and/or otherwise for any legitimate non-commercial purposes. The Complainant therefore claims to have proved that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Lastly, the Complainant contends that the disputed domain name has been registered and is being used by the Respondent in bad faith. The Complainant states that the Respondent must have been aware of the Complainant’s services, prior rights and interest with respect to its domain name and/or its trademarks / trade name and has intentionally adopted the disputed domain name in order to deceive and misguide the public at large. The Complainant contends that people in general are getting confused by the disputed domain name and are believing it to be related/connected to the Complainant. According to the Complainant, people are sharing their valuable personal information with the Respondent and it is taking undue advantage of the same, which is affecting the painstakingly earned reputation and goodwill of the Complainant and its group companies. The Complainant argues that many people have come to it with queries regarding the disputed domain name. Such complaints clearly reflect the dishonest intentions of the Respondent for using the disputed domain name for its own benefits by way of cheating people in the name of job invitations or easy visa processing services. Few such enquiries have been cited by the Respondent. The Complainant states that the details provided by the Respondent while registering the disputed domain name appear to be fake. As per the Complainant, this clearly shows that the Respondent has registered the disputed domain name in bad faith with a sole purpose to obtain undue commercial gains out of it. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Panel finds that the proceedings have been conducted in accordance with the Rules and the Policy. Having gone through the series of communications as set out above under the Section on procedural history, the Panel concludes that the Center has notified the Respondent of this proceeding and has discharged its responsibility under paragraph 2(a) of the Rules. According to paragraph 14(a) of the Rules, where there is a failure by the Respondent to provide a response to the allegations of the Complainant, as in the present case, the Panel in accordance with paragraph 14(b) shall “draw such inferences therefrom as it considers appropriate”. The Respondent, despite being accorded an opportunity, submitted no formal response, and the deadline for the same expired on September 23, 2020. Taking into consideration the Respondent’s default, the Panel can infer that the Complainant’s allegations are true where it considers that to do so would be reasonable and appropriate. Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) clearly stipulates that the Respondent’s default (failure to submit a formal response) would not by itself mean that the Complainant is deemed to have prevailed. The burden still remains with the Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, the Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. The following three requirements under paragraph 4(a) of the Policy have to be met for this Panel to transfer the disputed domain name to the Complainant: i. the disputed domain name is identical 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; and iii. the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. A trademark registration provides a clear indication that the rights in the trademark belong to the Complainant. See, WIPO Overview 3.0, section 1.2.1. Valid and subsisting trademark registrations in favour of the Complainant therefore constitute prima facie evidence of its ownership, validity and the exclusive right to the use of the VFS / VFS GLOBAL trademarks and its variants in connection with the stated goods and services. See, Microsoft Corporation v. J. Holiday Co., WIPO Case No. D2000-1493. The Panel observes that the disputed domain name Previous UDRP panels have ruled that a domain name which wholly incorporates a complainant’s registered trademark is sufficient to establish identity or confusing similarity, for the purposes of paragraph 4(a)(i) of the Policy, despite the addition of other words to the disputed domain name. See, EAuto, L.L.C. v. EAuto Parts,WIPO Case No. D2000-0096. The Panel therefore finds that the addition of the word “helpline” to the disputed domain name does not dispel a finding of confusing similarity with the Complainant’s trademarks. Likewise, prior UDRP decisions have also held that the addition of hyphen to the disputed domain name is a mere punctuation and too minor a difference to avoid a finding of confusing similarity as regards the disputed domain name. See, Carrefour v. Wuxi Yilian LLC, WIPO Case No. D2017-1763. Lastly, the Panel notes that section 1.11 of the WIPO Overview 3.0 , further provides that generic Top-Level Domains (e.g., “.com”, “.info”, “.net”, “.org”) are a standard registration requirement and have to be disregarded under the first element in the confusing similarity test. In the above backdrop, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s registered trademarks VFS/ VFS GLOBAL trademark. The Panel accordingly finds that the requirement of paragraph 4(a)(i) of the Policy stands duly satisfied. B. Rights or Legitimate Interests The second element under paragraph 4(a) of the Policy requires the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel notes that the Complainant has already submitted evidence that it holds exclusive rights in VFS / VFS GLOBAL trademarks and its numerous variants by virtue of both statutory registrations and common law use, rights which have accrued in the Complainant’s favour since 2003, long prior to the Respondent’s registration of the disputed domain name on March 2, 2020. The Panel also observes that the Complainant owns the domain name The Panel is therefore satisfied that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The burden of production on this element therefore shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. See, Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. The Panel notes that the Respondent has failed to produce any evidence of any rights or legitimate interests in the disputed domain name and opines that the the Complainant can be deemed to have satisfied the second element under paragraph 4(a)(ii) of the Policy. See, Section 2.1 of the WIPO Overview 3.0. As the Respondent was duly notified of the Complaint and has chosen not to rebut it on merits, the Panel draws an adverse inference against the Respondent with respect to the allegations made by the Complainant, from the silence of the Respondent. See, Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. The Panel observes that there is no evidence on the record of this proceeding to suggest that the Respondent owns any trademark registrations comprising of the words VFS / VFS GLOBAL or is commonly known by the disputed domain name or that it has acquired any reputation and/or goodwill in the name/ trademarks VFS/ VFS GLOBAL in any country. There is further nothing to indicate that the Complainant has licensed, authorized, or otherwise consented to the Respondent’s use of its said trademarks in connection with the the disputed domain name. In the absence of any license or permission from the Complainant to use its trademarks, no actual or contemplated bona fide or legitimate use of the disputed domain name could reasonably be claimed. See, LEGO Juris A/S v. DomainPark Ltd,WIPO Case No. D2010-0138. Furthermore, the Panel notes that the Complainant has been specifically and exclusively authorized and appointed by the Government of various countries to carry out visa administration and management work. The Complainant’s website also appears to be continuously accessed by numerous Internet users. The Panel is therefore satisfied that the unauthorized use of the disputed domain name The Panel finds that the Respondent by its conduct is attempting to associate himself with the Complainant for making illegal monetary gains, when no such association actually exists. Using a domain name for such activities cannot be the basis of rights or legitimate interests in a domain name. See, Haas Food Equipment GmbH v. Usman ABD, Usmandel,WIPO Case No. D2015-0285 and Akrema France v. Antonietta LoRusso Na, VirtualOffice,WIPO Case No. D2018-0982. Based on Annex 14 of the Complaint, the Panel finds that the Respondent is using the disputed domain name as a standard registrar parking website featuring pay-per-click (PPC) hyperlinks providing services in competition with the Complainant. The Respondent is further not making a legitimate noncommercial or fair use of the disputed domain name Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith in Bad Faith According to the Policy, bad faith is understood to occur where a Respondent takes unfair advantage of or otherwise abuses a Complainant’s mark (see, section 3.1 of the WIPO Overview 3.0). The Panel observes that the disputed domain name was registered on March 2, 2020 almost 17 years after the Complainant had first registered its VFS label trademark in 2003. The Panel further notes that the Complainant has already placed on record evidence illustrating not only its statutory rights in the name/ trademarks VFS / VFS GLOBAL (rights accruing much prior to the registration of the disputed domain name). In the backdrop of the Complainant’s prior use, widespread and extensive business activities on the Internet (dating back to the year 2003), domain name registration for A evidenced by Annex 14 to the Complaint, the Panel notes that the disputed domain name Previous UDRP rules have held that even if the advertising links served up to visitors on the website associated with the disputed domain name are automated, the Respondent continues to remain responsible for the uses to which the disputed domain name is put. See, Rolex Watch U.S.A., Inc. v. Vadim Krivitsky,WIPO Case No. D2008-0396. The Panel observes in this regard that for establishing bad faith under paragraph 4(b)(iv) of the Policy, the Respondent should intend to attract Internet users ‘for commercial gain’, and this gain does not need to be derived by the Respondent himself. Therefore, the Panel is convinced that the Respondent’s main purpose in registering the disputed domain name, confusingly similar to the Complainant’s registered trademarks VFS/ VFS GLOBAL was to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s name/ trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. According to the evidence submitted by the Complainant (Annex 15 A-E of the Complaint), the Respondent has also associated the email “[….]@vfsglobalhelpline.org” with the disputed domain name in a deliberate attempt to mislead members of the public. The said email is in the name of an employee of the Complainant, i.e. Stephen Rayan, which cannot be a mere coincidence. Therefore, the Panel notes that the disputed domain name has been used to send fraudulent emails in a phishing scheme targeting job seekers into depositing a sum of money as job and visa processing fees. In this Panel’s view such conduct on the part of the Respondent constitutes bad faith registration and use. See, The Swatch Group AG, Swatch AG v. thomas, thomas bolton, WIPO Case No. D2019-1771. The Panel therefore finds that the Respondent obviously knew of the Complainant’s rights in the VFS/ VFS GLOBAL trademarks and specifically targeted the Complainant by cheating and misleading job seekers. The unopposed allegation of phishing, the evidence submitted in support of phishing, combined with the likelihood of confusion, is sufficient evidence of bad faith on the part of the Respondent. See, Accor v. SANGHO HEO / Contact Privacy Inc.,WIPO Case No. D2014-1471. The Panel also determines that the Respondent’s use of the privacy protection service, WhoisGuard in the circumstances of the present case constitutes additional evidence of bad faith. Absent any explanation from the Respondent, the Panel cannot conceive of any plausible good faith use of the disputed domain name that could be made by the Respondent. The Respondent’s conduct in registering the disputed domain name therefore constitutes opportunistic bad faith. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of 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 Shwetasree Majumder
Sole Panelist
Date: October 27, 2020
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