Complainant is Atos SE, France, represented by Novagraaf France, France.
Respondent is Nadeem Jatu, United Arab Emirates. 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 18, 2020. On September 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 22, 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 September 22, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on September 23, 2020. The Center verified that the Complaint together with the amendment to the 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 October 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 21, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 22, 2020. The Center appointed Frederick M. Abbott as the sole panelist in this matter on October 28, 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 owner of registrations for the word, and word and device/design, trademark ATOS, on the register of the European Union Intellectual Property Office (EUIPO), including registration number 497016, registration dated February 15, 2000, in international classes (ICs) 9, 16, 35, 36, 37, 38, 41 and 42, covering, inter alia, computer software and services (as further specified), and; registration number 10148484, registration (word and device/design) dated March 26, 2012, in ICs 9, 35, 38 and 42, covering, inter alia, management consultancy and computer programming (as further specified). Complainant is owner of registrations for the word, and word and device/design, trademark ATOS on the register of the United Arab Emirates (UAE) Trade Marks Department, registration number 161142, registration dated September 19, 2012, in IC 9, covering scientific apparatus (as further specified), and; registration number 161143, registration dated May 14, 2012, in IC 35, covering management advisory services (as further specified). Complainant owns additional registrations for the ATOS trademark, including under the Madrid System. Complainant is a major information technologies services provider doing business in or with the 73 countries, and with annual revenue of approximately EUR12 billion. Complainant operates a commercial website at “www.atos.net”. Complainant has provided substantial evidence that it is widely known among information technology service providers, including reaching the number three position worldwide in managed security services for cyberspace in 2018 according to Gartner research.1 According to the Registrar’s verification, Respondent is registrant of the disputed domain name. According to that verification, the record of registration of the disputed domain name was created on August 11, 2018. There is no indication in the record of this proceeding that registration of the disputed domain name has been held by any party other than Respondent. Respondent uses the disputed domain name to direct Internet users to a website headed “ATOS Technology” with various references to experience in carrying out projects, including in the information technology field. The various links on the website provide very limited information about what ATOS Technology actually does, or who it employs. There is a generic “info@” email contact address. The look and feel of Respondent’s website shares certain visual similarities with Complainant’s commercial website, though it is not a “clone”. The registration agreement between Respondent and the Registrar subjects Respondent to dispute settlement under the Policy. The Policy requires that domain name registrants submit to a mandatory administrative proceeding conducted by an approved dispute resolution service provider, one of which is the Center, regarding allegations of abusive domain name registration and use (Policy, paragraph 4(a)). 5. Parties’ Contentions A. Complainant Complainant alleges that it has rights in the trademark ATOS and that the disputed domain name is confusingly similar to that trademark. Complainant contends that Respondent lacks rights or legitimate interests in the disputed domain name because: (1) the disputed domain name does not correspond to any trademark that Respondent owns; (2) Respondent is not affiliated in any way with Complainant’s business, and Respondent has not been authorized to use Complainant’s trademark; (3) Respondent must have been aware of Complainant’s trademark when it registered the disputed domain name, and: (4) Respondent has used Complainant’s trademark in the disputed domain name to direct Internet users to a website that offers the same or similar services as Complainant, which is not a fair use. Complainant argues that Respondent registered and used the disputed domain name in bad faith because: (1) Complainant’s trademark is well known in the information technology industry and Respondent must have been aware of Complainant’s trademark when it registered the disputed domain name; (2) Respondent’s website offers the same or similar services as Complainant and uses the same blue color as used by Complainant; (3) Respondent’s website is intended to suggest sponsorship by Complainant, and; (4) Respondent is using the disputed domain name to direct Internet users to its website for commercial gain in order to generate traffic by creating a likelihood of confusion. Complainant requests the Panel to direct the registrar to transfer the disputed domain name to Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings It is essential to Policy proceedings that fundamental due process requirements be met. Such requirements include that a respondent have notice of proceeding that may substantially affect its rights. The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)). The Center formally notified the Complaint to Respondent at the email and physical address provided in its record of registration. It appears that express courier physical delivery could not be completed because of false and/or incomplete address information provided by Respondent. There is no evidence on the record of the proceeding as to whether email notice was received by Respondent at the contact information it provided. The Center took those steps prescribed by the Policy and the Rules to provide notice to Respondent, and those steps are presumed to satisfy notice requirements. Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and use and to obtain relief. These elements are that: (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) the disputed domain name has been registered and is being used in bad faith. Each of the aforesaid three elements must be proved by a complainant to warrant relief. A. Identical or Confusingly Similar Complainant has provided substantial evidence of rights in the trademark ATOS, including by registration at the EUIPO and UAE Trade Marks Department, and through use in commerce. See Factual Background, supra. Respondent has not challenged Complainant’s rights in the trademark. The Panel determines that Complainant has established rights in the ATOS trademark. The disputed domain name directly incorporates Complainant’s trademark and adds the noun “technology”. Complainant’s trademark is readily identifiable within the disputed domain name and this supports a finding of confusing similarity. Addition of “technology” to Complainant’s trademark in the disputed domain name does not prevent a finding of confusing similarity between Complainant’s trademark and the disputed domain name. The Panel determines that Complainant has established rights in the trademark ATOS and that the disputed domain name is confusingly similar to Complainant’s trademark within the meaning of the Policy. B. Rights or Legitimate Interests Complainant’s allegations to support Respondent’s lack of rights or legitimate interests in the disputed domain name are outlined above in section 5.A., and the Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the disputed domain name. Respondent has not replied to the Complaint and has not attempted to rebut Complainant’s prima facie showing of lack of rights or legitimate interests. Complainant has provided substantial evidence that Respondent has used the confusingly similar disputed domain name to direct Internet users to a commercial website offering certain services that are in the same field as those of Complainant. There is no disclaimer of affiliation with Complainant on Respondent’s website. Respondent’s use of the disputed domain name commenced long after Complainant established rights in its trademark. Such use by Respondent does not constitute legitimate noncommercial or fair use of the disputed domain name. The Panel determines that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name within the meaning of paragraph 4(c) the Policy. C. Registered and Used in Bad Faith In order to prevail under the Policy, Complainant must demonstrate that the disputed domain name “has been registered and is being used in bad faith” (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy states that “for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith”. These include that, “(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location”. Respondent has used the disputed domain name that is confusingly similar to Complainant’s trademark intentionally for purposes of commercial gain to establish Internet user confusion regarding Complainant as the source, sponsor or affiliate of Respondent’s commercial website. Given the substantial reputation of Complainant in the information technology field, Respondent must have been aware of Complainant’s rights in its trademark when it registered and used the dispute a domain name. The Panel determines that Respondent registered and is using the disputed domain name in bad faith within the meaning of paragraph 4(b) 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 Frederick M. Abbott 1 Gartner, Market Share: Managed Security Services. Worldwide. 2018. “Summary: The MSS market grew 6.7% in 2018, reaching $10.7 billion in revenue. The market has continued its healthy growth trajectory, driven by a mix of established and emerging providers. IBM captured the No. 1 position, with AT&T and Atos in second and third positions, respectively.” https://www.gartner.com/en/documents/3913258/market-share-managed-security-services-worldwide-2018#:~:text=The%20MSS%20market%20grew%206.7,second%20and%20third%20positions%2C%20respectively. (Panel visit of November 11, 2020). >
Sole Panelist
Date: November 11, 2020
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