The Complainant is Link Financial Investments Limited, United Kingdom, represented by Allen & Overy LLP, United Kingdom.
The Respondent is Domain Privacy Service FBO Registrant, United States of America / [Name Redacted]1 , United Kingdom. 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 17, 2020, with regards to two disputed domain names. On September 18, 2020, the Center informed the Complainant of the potential expiry of both disputed domain names. On October 19, 2020, the Complainant informed the Center that it wished to proceed with the Complaint. On October 19, 2020, the Center transmitted by email to the Registrars requests for registrar verifications in connection with the disputed domain names. On October 19, 2020, the Registrar transmitted by email to the Center its verification responses disclosing registrant and contact information for the Disputed Domain Name, which differed from the named Respondent and contact information in the Complaint. On the same day, the registrar for the other disputed domain name confirmed that the other disputed domain name was pending redemption. On November 9, 2020, the Complainant informed the Center that it would not be able to renew the other disputed domain name and wished to proceed with the Complaint in regards to only the Disputed Domain Name. On November 9, 2020, the Center informed the Parties and the Registrar of the withdrawal of the other disputed domain name from the proceeding. The Center sent an email communication to the Complainant on November 9, 2020, providing the registrant and contact information disclosed by the Registrar for the Disputed Domain Name, and inviting the Complainant to submit an amendment to the Complaint. On November 12, 2020, the Complainant asked for an extension to the filing period for the amended Complaint. The Complainant filed an amended Complaint on November 16, 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 November 17, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 7, 2020. On November 30, 2020, the Complainant submitted a supplemental filing to the Center. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 8, 2020. The Center appointed Nick J. Gardner as the sole panelist in this matter on December 16, 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 incorporated in England, United Kingdom (“UK”). It is a member of a group of companies (the “Link Group”) whose ultimate parent is incorporated in Australia. The Link Group is a provider of services relating to equities, pensions and superannuation, investments, property, and other financial assets, with over 6,500 employees working across 14 jurisdictions. For the financial year ended June 30, 2019, the Link Group reported a total revenue of AUD1.4 billion, AUD 570 million of which (or 41 per cent) is attributable to the UK and Ireland. An affiliate company within the Link Group owns a number of trademarks which include the word “Link” including in particular Australian trademark registration number 1376157 for LINK FINANCIAL SERVICES registered on July 2, 2012 (the “LINK FINANCIAL SERVICES trademark”). The Disputed Domain Name was registered on August 14, 2019. The filed evidence shows it has in the past been linked to a website (the “Respondent’s Website”) which purports to be that of the Complainant and which uses content copied from the Complainant’s own website. The filed evidence also shows it has been used for fraudulent activity. By way of example on August 21, 2019, a Mr. AT contacted the Link Group providing an email and a letter from a firm purporting to be Link Financial Investments Limited, offering to assist him in the sale of his investments, which was to be “provisioned and underwritten by Link Financial Investments”. The email came from an address at the Disputed Domain Name. The correspondence clearly seeks to impersonate the Complainant and uses its company details including its address, company number and FCA registration number, as well as forging the signature of a director at the Complainant. The Complainant has reported these matters to the police and to regulatory authorities. 5. Parties’ Contentions A. Complainant The Complainant’s case can be summarized as follows. The Disputed Domain Name is confusingly similar to the LINK FINANCIAL SERVICES trademark in which it has both registered and common-law trademark rights. The Respondent has no rights or legitimate interests in the term “Link Financial Investments”. The Disputed Domain Name was registered and is being used in bad faith. The Complainant says the deceptive nature of the Respondent’s Website is clear evidence of bad faith. It says the Respondent’s motive was financial gain by means of fraud using the Disputed Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Preliminary Matters The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909). The Panel also notes this is a case where one Respondent (“Domain Privacy Service FBO Registrant”) appears to be a privacy or proxy service. The Panel in this case adopts the approach of most UDRP panels, as outlined in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 4.4.5, as follows: “Panel discretion In all cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed. Depending on the facts and circumstances of a particular case, e.g., where a timely disclosure is made, and there is no indication of a relationship beyond the provision of privacy or proxy registration services, a panel may find it appropriate to apply its discretion to record only the underlying registrant as the named respondent. On the other hand, e.g., where there is no clear disclosure, or there is some indication that the privacy or proxy provider is somehow related to the underlying registrant or use of the particular domain name, a panel may find it appropriate to record both the privacy or proxy service and any nominally underlying registrant as the named respondent.” In the present case, the Panel moreover notes that the Complainant was contacted by a person claiming to be the named Respondent and that this person alleged that the registration had been undertaken fraudulently in their name, i.e., the Complainant alleges the registration was done with fake contact details. Substantive Matters To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) the Disputed Domain Name is identical with 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 The Complainant says it owns various registered trademarks containing the word “Link” including the LINK FINANCIAL SERVICES trademark. In fact, all the examples given, including the LINK FINANCIAL SERVICES trademark, are owned by an affiliate company in Australia. However as noted in WIPO Overview 3.0 at section 1.4: “Does a trademark owner’s affiliate or licensee have standing to file a UDRP complaint? 1.4.1 A trademark owner’s affiliate such as a subsidiary of a parent or of a holding company, or an exclusive trademark licensee, is considered to have rights in a trademark under the UDRP for purposes of standing to file a complaint”. In the circumstances, the Panel accepts the Complainant has rights in the LINK FINANCIAL SERVICES trademark. The Panel does not therefore consider it necessary to consider the Complainant’s further case as to unregistered trademark rights (though this would not be an obstacle given the use and figures noted in the Factual Background). The Panel finds the Disputed Domain Name is confusingly similar to the LINK FINANCIAL SERVICES trademark. Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). It is established in WIPO Overview 3.0 at section 1.7 that, where a domain name incorporates the entirety of a mark, or where at least a dominant feature of a mark is recognizable in a disputed domain name, the disputed domain name is considered to be confusingly similar to the mark. It is also established that the addition of a term (such as here “investments” which moreover appears in place of “services” as in the complainant’s mark) to a disputed domain name has little, if any, effect on a determination of confusing similarity between the domain name and the mark (Quixtar Investments, Inc. v. Dennis Hoffman,WIPO Case No. D2000-0253); furthermore, mere addition of a term does not prevent a finding of confusing similarity under the first element (PRL USA Holdings, Inc. v. Spiral Matrix,WIPO Case No. D2006-0189). It is also well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429. Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name: (i) before any notice to the respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the LINK FINANCIAL SERVICES trademark. The Complainant has prior rights in the LINK FINANCIAL SERVICES trademark which precede the Respondent’s acquisition of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). The Panel finds that the Respondent has failed to produce any evidence to establish his or her rights or legitimate interests in the Disputed Domain Name. Further, as noted in section 2.13 of the WIPO Overview 3.0, panels have categorically held that the use of a domain name for illegal activities (in this instance, the sending of emails impersonating the Complainant) can never confer rights or legitimate interests on a respondent. Accordingly, the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith In the present circumstances the fact that the Disputed Domain Name was linked to the Respondent’s Website which impersonates the Complainant lead the Panel to conclude the registration and use were in bad faith. Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location. In the present circumstances, the Panel agrees with the Complainant that factor (iv) applies, as the Respondent’s Website appears to be some form of “phishing” and/or fraudulent scheme which is manifestly evidence of bad faith – see Australia and New Zealand Banking Group Limited v. Bashar Ltd,WIPO Case No. D2007-0031, and the cases therein referred to, for further analysis of why such activities amount to use in bad faith. See also Grupo Financiero Inbursa S.A. de CV v ibuirisa,WIPO Case No. D2006-0614, to similar effect. The Panel also notes that the Respondent has not filed a Response and hence has not availed himself or herself of the opportunity to present any case of good faith that he or she might have. The Panel infers that none exists. The Panel moreover notes the claimed use of fake contact details for purposes of registration. Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) of the Policy has been fulfilled. 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 Nick J. Gardner 1 Respondent appears to have used the name and contact details of a third person when registering the disputed domain name. In light of the potential identity theft, the Panel has redacted Respondent’s name from this Decision. However, the Panel has attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name which includes Respondent’s name. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case. See ASOS plc. v. Name Redacted,WIPO Case No. D2017-1520; Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,WIPO Case No. D2009-1788.
Sole Panelist
Date: December 30, 2020
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