The Complainant is Sofi Groupe, France, represented by Lexando & Caracteq, France.
The Respondent is Whoisguard, Inc., Panama / smaarty smaarty, France. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2020. On September 10, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 10, 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 September 11, 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 September 11, 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 14, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 4, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 5, 2020. The Center appointed Jane Seager as the sole panelist in this matter on October 19, 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 (formerly “Fibrosud, SAS”) is a French company acting in the telecommunications sector. As part of its operations, the Complainant sells refurbished mobile phones and accessories, primarily via its website at “www.smaaart.fr”. For use in connection with the Complainant’s online-retail business, the Complainant has registered the following trademarks: - French Trademark No. 4354133, SMAAART, filed on April 12, 2017; - French Trademark No. 4385081, SMAAART, filed on August 30, 2017; and - European Union Trade Mark No. 018160080, SMAAART, registered on May 22, 2020. The disputed domain name was registered on October 3, 2020. The disputed domain name resolves to a website (the “Respondent’s website”) that purports to offer refurbished mobile phones and accessories for sale. The Respondent’s website lists the Complainant’s physical address on its homepage, and lists Complainant’s company name and physical address in the Respondent’s website’s legal notice. 5. Parties’ Contentions A. Complainant The Complainant asserts rights in the SMAAART trademark. The Complainant submits that the disputed domain name creates a risk of confusion with its SMAAART trademark in that both are composed of seven letters, six of which are identical and are placed in the same order of appearance; the elements “smaaart” and “smaarty” have comparable pronunciation; and the letter sequences forming the words “smaaart” and “smaarty” both refer to the “smart” radical in smartphones. The Complainant argues that the only difference between the Complainant’s trademark and the disputed domain name is the presence of a letter “y” and the absence of one letter “a” in the disputed domain name, which does not rule out the phonetic and visual similarities between the two. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant asserts that the Respondent has not obtained any trademark rights for “smaarty”. The Complainant submits that the Respondent is using the disputed domain name in order to clone the website of the Complainant for the purposes of phishing. The Complainant asserts that customers have been deceived by the Respondent’s website. The Complainant submits that the disputed domain name was registered and is being used in bad faith. The Complainant asserts that the Respondent has made use of false contact information in the WhoIs record for the disputed domain name, and infers from the Respondent’s subsequent misleading use of the disputed domain name that the Respondent registered the disputed domain name in bad faith. The Complainant submits that the disputed domain name is being used in bad faith as the Respondent is misrepresenting itself as the Complainant. The Complainant asserts that the Respondent has even created fake consumer reviews in order to mislead Internet users. The Complainant further states that it has filed a complaint with the French Police Authority relating to digital identity fraud. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to prevail in its Complaint, the Complainant is required to demonstrate, on the balance of probabilities, that it has satisfied the requirements of paragraph 4(a) of the Policy, notably: (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 was registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has established rights in the SMAAART trademark, by virtue of its registration and use, the details of which are provided in the factual background section above. Prior UDRP panels have held that a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered to be confusingly similar to the relevant trademark for purposes of the first element; see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9. The disputed domain name differs from the Complainant’s trademark by omitting one letter “a” from the middle, and adding one letter “y” at the end. The Panel finds that the omission of one letter “a” and the addition of the letter “y” to the end of the Complainant’s trademark does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. Moreover, the letters “t” and “y” are adjacent on both QWERTY and AZERTY keyboards. It is therefore possible that an Internet user may misspell the Complainant’s SMAAART trademark as “smaarty” when searching online for the Complainant. The generic Top-Level Domain “.store” may be disregarded for the purposes of comparison under the first element; see WIPO Overview 3.0, section 1.11.1. The Panel finds that the disputed domain name is confusingly similar to the Complainant’s SMAAART trademark. The Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests There is no evidence of there being any relationship between the Parties. The Respondent not been granted any licence or other authorization to make use of the Complainant’s SMAAART trademark. The Respondent is not a reseller of the Complainant’s products. The Respondent is using the disputed domain name in connection with a website that purports to sell refurbished mobile phones – an identical business to that of the Complainant. Despite there being no relationship between the Parties, the Respondent lists the Complainant’s physical address on its homepage, and lists the Complainant’s company name and address in the legal notice on the Respondent’s website. The Complainant has provided a copy of a Police report, with details of a consumer who appears to have been misled into paying money to the Respondent for goods that were never delivered. The Panel finds that the Respondent is using the disputed domain name in the furtherance of a fraudulent online scheme, whereby the Respondent is using elements of the Complainant’s corporate identity in order to mislead Internet users into thinking that they have arrived at the Complainant’s website, i.e., the website of a legitimate online retailer. Prior UDRP panels have categorically held that the use of a domain name for illegal activity (e.g., impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent; see WIPO Overview 3.0, section 2.13. The Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services as contemplated by paragraph 4(c)(i) of the Policy. None of the other factors that may establish rights or legitimate interests in a domain name, as set out in paragraph 4(c) of the Policy, appears to apply. The Respondent has not come forward to otherwise provide evidence of any rights or legitimate interests that it may have in the disputed domain name. The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel infers from the use of the disputed domain name, as described above, that the Respondent was well aware of the Complainant and its rights in the SMAAART trademark, and that the Respondent registered the disputed domain name with the view to using it as part of a fraudulent online scheme aimed at misleading potential customers of the Complainant. The Panel finds that the disputed domain name was registered in bad faith. Prior UDRP panels have found that given that the use of a domain name for per se illegitimate activity can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith; see WIPO Overview 3.0, section 3.1.4. The Panel further finds that in light of the similarity between the disputed domain name and the Complainant’s trademark, as well as the misleading inclusion of the Complainant’s contact information on the Respondent’s website, Internet users arriving at the Respondent’s website are likely to mistakenly believe that the Respondent’s website is operated by or otherwise affiliated with the Complainant. By using the disputed domain name in the manner described above, the Panel finds that the Respondent has attempted to attract, for commercial gain, Internet users to the its website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website and the goods advertised for sale therein, in bad faith pursuant to paragraph 4(b)(iv) of the Policy. The Panel further finds the Respondent’s registration of the disputed domain name using a privacy service to hide its identity, and the apparent provision of false or incomplete underlying registrant information, to be additional evidence of the Respondent’s bad faith. The Panel finds that the Respondent registered and is using the disputed domain name in bad faith. The Complainant has satisfied the requirements of paragraph 4(a)(iii) 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 Jane Seager
Sole Panelist
Date: November 2, 2020
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