Complainant is ALP Lighting & Ceiling Products, Inc., United States of America (“United States”), represented by Much Shelist PC, United States.
Respondent is Contact Privacy Inc. Customer 0160562647, Canada / Name Redacted1 . 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2021. On February 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 5, 2021, 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 February 8, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on February 9, 2021. 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 Respondent of the Complaint, and the proceedings commenced on February 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 2, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 3, 2021. The Center appointed Georges Nahitchevansky as the sole panelist in this matter on March 10, 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. On March 24, 2021, the Center received an email communication from the Complainant. 4. Factual Background Complainant, ALP Lighting & Ceiling Products, Inc., is a designer, manufacturer, and distributor of lighting components and components for other technical industries. Complainant is based in the State of Illinois in the United States and has been in business since the mid-1950s. Complainant has used the marks and designations A.L.P., A.L.P. LIGHTING, and A.L.P. LIGHTING COMPONENTS in connection with its goods and services. Complainant owns and uses the domain name Respondent registered the disputed domain name on January 15, 2021. Respondent has used the disputed domain name to send emails to the accounts receivable department of a customer of Complainant advising that Complainant had recently switched its bank account and to provide details for Complainant’s purportedly new bank account. Currently the disputed domain name does not resolve to any active website or web page. 5. Parties’ Contentions A. Complainant Complainant contends that it owns unregistered common law rights in the marks A.L.P., A.L.P. LIGHTING, and A.L.P. LIGHTING COMPONENTS, and that such have acquired distinctiveness through Complainant’s decades of widespread use and promotion of the sales of goods and services under these marks. Complainant argues that the disputed domain name is confusingly similar to Complainant’s A.L.P. LIGHTING mark as the only difference is the use of the letter “l” instead of the first letter “i” in the word “lighting.” Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name as Respondent (i) has never made a bona fide offering of goods and services and has instead only used the disputed domain name for fraudulent purposes, (ii) is not commonly known by the disputed domain name, (iii) has no trademark or service mark rights in the disputed domain name, (iii) and is not making a legitimate noncommercial or fair use of the disputed domain name. Lastly, Complainant contends that Respondent has registered and used the disputed domain name in bad faith as Respondent registered the disputed domain name “with the knowledge of the Complainant and the specific intention to imitate the Complainant” and then used the disputed domain name to send fraudulent emails to a customer of Complainant. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) 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. Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar The Panel is satisfied that Complainant owns rights in the unregistered common law marks A.L.P., A.L.P. LIGHTING, and A.L.P. LIGHTING COMPONENTS, and secured those rights well before Respondent registered the disputed domain name. Complainant has submitted sufficient relevant evidence establishing the duration and nature of Complainant’s claimed common law rights, the amount of sales under those marks, the nature and extent of Complainant’s advertising of goods and services under those marks, and public recognition of Complainant’s marks as relating to Complainant. WIPO Overview 3.0 at section 1.3. With Complainant’s rights in the A.L.P., A.L.P. LIGHTING, and A.L.P. LIGHTING COMPONENTS marks established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain “.com”) is identical or confusingly similar with Complainant’s marks. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s A.L.P. LIGHTING mark as it consists of typo version of the A.L.P. LIGHTING mark to create a misspelled version of the A.L.P. LIGHTING mark. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s A.L.P. LIGHTING mark and in showing that the disputed domain name is confusingly similar to that trademark. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. Based on the evidence submitted in this proceeding, it appears that Respondent has registered a typo version of the A.L.P. LIGHTING mark for purposes of impersonating Complainant and perpetuating a financial fraud on at least one customer of Complainant by sending emails that purported to originate from Complainant and advising of an alleged bank account change. Complainant has provided evidence that Respondent has used the disputed domain name for emails that appear to originate from Complainant but which, in fact, are based on the disputed domain name, which is a typo version of the A.L.P. LIGHTING mark. Simply put, Respondent’s use of the disputed domain name to impersonate another for a deceitful purpose cannot in any sense of the word be seen as being legitimate or evidencing a bona fide right or legitimate interest. Given that Complainant has established with sufficient evidence that it owns rights in the A.L.P. LIGHTING mark, and given Respondent’s above noted actions and failure to appear in this proceeding, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith Given Respondent’s actions as noted above, and its failure to appear in this proceeding, it is easy to infer that Respondent’s use of the disputed domain name which is a typo version of Complainant’s A.L.P. LIGHTING mark for use in an apparent fraudulent financial scheme has been done in bad faith. Given that Complainant had established rights in the A.L.P. LIGHTING mark prior to when Respondent registered the disputed domain name, it is evident that Respondent opportunistically registered the disputed domain name for purposes of perpetuating a fraud at the expense of Complainant. Accordingly, the Panel finds that Complainant succeeds under this element 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 Georges Nahitchevansky 1 On March 24, 2021, the Center received an email communication from Complainant requesting that the Respondent’s name be redacted. Complainant provided evidence in the form of a sworn declaration from the named registrant that the registrant was the victim of identity fraud perpetrated by the underlying Respondent who hacked into an account of the named registrant to register and then use the disputed domain name. The Panel is satisfied that redaction is warranted here based on Complainant’s submissions. The “Respondent” shall hereinafter refer to the unknown party who registered the disputed domain 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.
Sole Panelist
Date: March 24, 2021
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