The Complainant is Educational Testing Service, United States of America (“United States”), represented by Jones Day, United States.
The Respondent is Best Solutions IT, Egypt. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2020. On October 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 15, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details information for the Domain Name. The Center verified that 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 the Respondent of the Complaint, and the proceedings commenced on October 27, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 16, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 22, 2020. The Center appointed Ian Lowe as the sole panelist in this matter on December 17, 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 claims to be the world’s largest private non-profit educational testing and assessment organization. Its products and services measure knowledge and skills, promote learning and educational performance, and support education and professional development for all people worldwide. The Complainant develops, administers and scores more than 50 million tests per year, in more than 180 countries and 9,000 locations worldwide. The many well-known tests developed and administered by the Complainant or its related companies include the TOEFL test. It maintains an extensive worldwide network of local test administrators and authorized testing centers, including in Egypt. The Complainant has used the ETS mark in connection with its business since 1948. The Complainant is the registered proprietor of numerous trademarks comprising ETS around the world, including United States trademark number 1,166,461 ETS registered on August 25, 1981; United States trademark number 4,122,844 ETS and device registered on April 3, 2012 (the “ETS device mark”); and Egypt trademark number 109499 ETS device mark registered on July 6, 2017. The Complainant is also the registrant of over 700 domain names incorporating the ETS mark. The Domain Name was first registered on April 15, 2019, and used for a website (the “First Website”) that was identical to the former appearance of the Complainant’s official TOEFL test website at “www.ets.org/toefl”. The First Website featured identical text, the same banner photograph on the home page and the Complainant’s ETS device mark. It offered fake TOEFL test registration services and solicited personally identifiable information such as usernames and passwords. The First Website was disabled at the behest of the Complainant in March 2020. The Domain Name was registered again on September 13, 2020. It currently resolves to a webpage stating that “This Account has been suspended”. Before the account was suspended, it resolved to a website almost identical to the First Website, again impersonating that of the Complainant, purporting to offer TOEFL test registration services and phishing for personal data. The website at the Domain Name was again suspended on October 12, 2020. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its ETS trademark (the “Mark”), that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings For this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has uncontested rights in the Mark, both by virtue of its numerous trademark registrations and as a result of the substantial goodwill and reputation acquired through its widespread use of the Mark over some 70 years. Ignoring the generic Top-Level Domain (“gTLD”) “.org”, the Domain Name differs from the Mark only by the addition of the letters “iq”. In the view of the Panel, the addition of this common initialism (an abbreviation for “intelligence quotient”) does not detract from the confusing similarity between the Mark and the Domain Name (see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. The Respondent is not authorized by the Complainant to use the Domain Name. The Respondent has not used the Domain Name in connection with a bona fide offering of goods or services, but rather has used it to connect to a website comprising a substantial copy of a website of the Complainant, offering fake testing services purporting to be those of the Complainant. In light of the nature of the Domain Name, comprising simply the Mark and the letters “iq”, the Panel cannot conceive of any legitimate use to which the Respondent could put the Domain Name. The Respondent has chosen not to respond to the Complaint or to take any steps to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith In this case, as noted above, the Panel considers that it is almost impossible to conceive of any good faith use to which the Domain Name could be put. The obvious inference is that the Respondent has used the Domain Name to resolve to a website comprising a substantial copy of the Complainant’s own website, incorporating therefore both the Mark and the Complainant’s ETS device mark, in order to deceive Internet users into believing that the Domain Name is operated or authorized by the Complainant. It no doubt did so with a view to attracting Internet users, by creating a likelihood of confusion with the Mark, for commercial gain and/or to phish for personal data for improper purposes. In the Panel’s view, this amounts to paradigm bad faith registration and use. 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 Domain Name Ian Lowe
Sole Panelist
Date: December 30, 2020
Full & Egal Universal Law Academy