The Complainant is Arnold Clark Automobiles Limited, United Kingdom, represented by Demys Limited, United Kingdom.
The Respondent is Domain Admin, Whois Privacy Corp., Bahamas. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 5, 2020. On November 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 6, 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. 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 November 25, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 15, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 29, 2020. The Center appointed Jeremy Speres as the sole panelist in this matter on January 7, 2021. 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 uncontested facts are as follows. The Complainant, under its ARNOLD CLARK trade mark, was founded in 1954, and is a large, independently owned car dealership with over 200 new and used car dealerships throughout the United Kingdom. The Complainant sells more than 250,000 vehicles per year, with an annual turnover of GBP 3 billion. In addition, the Complainant supplies leasing and fleet services, finance and insurance, aftercare, servicing, testing and accident repairs, all for vehicles. The Complainant promotes and renders its services through its primary website at “www.arnoldclark.com”. The Complainant’s ARNOLD CLARK trade mark is registered in the United Kingdom in classes 36, 37 and 39 under registration No. 2103334, and class 35 under registration No. 392300325, registered in 1997 and 2002 respectively. The Domain Name was registered on September 18, 2020, and, as at the filing of the Complaint and drafting of this decision, redirected to various websites exhibiting advertisements for businesses that compete with the Complainant, as well as websites presenting virus alerts and offering antivirus software and scans. 5. Parties’ Contentions A. Complainant The Complainant contends as follows. The Domain Name is confusingly similar to the Complainant’s well-known trade mark because it consists of an obvious misspelling of the mark which constitutes typosquatting. The Respondent has no rights or legitimate interests in the Domain Name: the Domain Name is unauthorised; the Respondent is not commonly known by the Complainant’s mark or ARNOLD CLRK; the Domain Name is being used to lure consumers to commercial sites and to distribute malicious software; given the fame of the Complainant’s mark and the confusing similarity of the Domain Name, there is no conceivable use to which the Domain Name could be put that would confer rights or legitimate interests. The Domain Name was registered and used in bad faith: the Domain Name is being used to distribute unrelated software under a variant of the Complainant’s well-known mark, taking unfair advantage of the Complainant’s rights; the Domain Name is configured for email purposes, exhibiting potential for phishing. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar It is well established that where a domain name consists of a clear misspelling of a trade mark such that the mark is recognisable, as in this case, the domain name is confusingly similar. See section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Here, the exclusion of the letter “a” does not serve to differentiate the overall impression of the Domain Name, which remains aurally and visually nearly identical to the mark. Many UDRP panels have found that the exclusion of a single letter from a trade mark does not prevent a finding of confusing similarity (see e.g. Kryterion International Limited v. ICS Inc.,WIPO Case No. D2017-1590; Specialized Bicycle Components, Inc. v. Nadeem Qadir,WIPO Case No. D2007-1500). The Complainant has satisfied the standing requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent (see section 2.1 of the WIPO Overview 3.0). Here, there is a prima facie case which the Respondent has failed to rebut. The Complainant’s evidence establishes that its mark was used extensively and enjoyed considerable goodwill in the United Kingdom prior to registration of the Domain Name. The Complainant has succeeded in various UDRP proceedings in which the panels accepted that the mark is well-known, including cases involving variants of the Complainant’s mark and redirection to commercial websites, as here. See e.g. Arnold Clark Automobiles Limited v. Carolina Rodrigues et al,WIPO Case No. D2019-1034. The Domain Name is confusingly similar to the Complainant’s well-known, registered mark and the Complainant has certified that the Domain Name is unauthorised. There is no evidence that any of the circumstances set out in paragraph 4(c) of the Policy pertain. The Respondent’s name, per the Registrar’s WhoIs data, bears no resemblance to the Domain Name for purposes of paragraph 4(c)(ii) of the Policy. The only evidence of use of the Domain Name, a typographical variant of the Complainant’s mark, is that of, firstly, redirection to a parked page comprising advertisements, some of which incorporate the Complainant’s trade mark, linked to commercial websites offering services which, inter alia, compete with the Complainant; and secondly, redirection to websites presenting deceptive virus alerts, offering antivirus software and scans. UDRP panels may undertake limited factual research into matters of public record (WIPO Overview 3.0 at section 4.8). The Panel has viewed the Hypertext Markup Language (“HTML”) for the advertising page to which the Domain Name redirects and has established that the page serves advertisements using the Google AdSense program on a pay-per-click (“PPC”) basis. UDRP panels have found that use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalise on the complainant’s mark (WIPO Overview 3.0 at section 2.9). The evidence does not conclusively establish that the software/scans offered via the Domain Name are malicious in the sense of malware, however, whatever the nature of the software/scans, inducing users to employ them through a deceptive virus alert is a species of fraud and cannot amount to a bona fide offering of goods or services. Panels have categorically held that the use of a domain name for illegal activity, e.g., distributing malware or other types of fraud, can never confer rights or legitimate interests (see WIPO Overview 3.0 at section 2.13). The Panel has also searched the Internet Archive, which contains no historical evidence of use of the Domain Name that might otherwise confer rights or legitimate interests upon the Respondent. The Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly those comprising typos, as in this case) to a well-known mark can create a presumption of bad faith (WIPO Overview 3.0 at section 3.1.4). That presumption is not rebutted here. The Complainant’s mark was in use and well-known long in advance of registration of the Domain Name. The Domain Name, The Domain Name is being used to advertise competitors of the Complainant. This, combined with the fact that the Domain Name is confusingly similar to the Complainant’s well-known mark, is a clear indicator that the Respondent has used the Domain Name with the Complainant’s mark in mind, and accordingly is an indicator of bad faith under paragraph 4(b)(iv) of the Policy (WIPO Overview 3.0 at section 3.1.4). A respondent cannot disclaim responsibility for programmatically generated PPC content (WIPO Overview 3.0 at section 3.5). The Domain Name is being used to perpetrate a species of fraud through deceptive virus alerts. Fraudulent conduct is clearly an indicator of bad faith. The use of deceptive virus alerts has specifically been found to constitute an indicator of bad faith in Health Care Service Corporation v. Nanci Nette, Name Management Group,WIPO Case No. D2020-2335. Although not raised by the Complainant, the Panel has established that the Domain Name is for sale on the marketplace Sedo with a minimum offer of USD 899 – most likely in excess of the out-of-pocket costs related to the Domain Name. This is further evidence of bad faith under paragraph 4(b)(i) of the Policy. The Respondent has attempted to conceal its identity by using a proxy service. Given the totality of the facts, this is a further indicator of bad faith (section 3.6 of the WIPO Overview 3.0). Under the Rules, paragraph 14(b), a panel may draw inferences from the respondent’s default where a particular conclusion is prima facie obvious, where an explanation is called for but is not forthcoming, or where no other plausible conclusion is apparent (section 4.3 of the WIPO Overview 3.0; see also Pixers Ltd. v. Whois Privacy Corp.,WIPO Case No. D2015-1171). The Complainant has satisfied 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 Domain Name, Jeremy Speres
Sole Panelist
Date: January 10, 2021
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