The Complainant is Adobe Inc., United States of America (the “US”), represented by ARS-Patent, Russian Federation.
The Respondent is Dmitrii Panin, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 30, 2021. On March 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 31, 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 the Complainant on April 12, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 13, 2021. The Center verified that the Complaint together with the amendment to the Complaint/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 April 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 13, 2021. The Center appointed Taras Kyslyy as the sole panelist in this matter on May 26, 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 Complainant was incorporated in the US in 1982. Amongst other things, it manufactures and distributes the well-known image manipulation software “Adobe Photoshop”, which was created in the 1990s. The Complainant owns numerous trademark registrations for its PHOTOSHOP mark in various jurisdictions, including European Union Trade Mark registration No. 000202549, registered on October 14, 1998. The disputed domain name was registered on June 24, 2020, and resolved to a website in Russian, featuring the Complainant’s trademarks, offering Complainant’s software and pretending to be official Complainant’s website and fan website for the Complainant’s software without any authorization by the Complainant. At the time of the decision, the disputed domain name redirects to a website at “https://adobedownloadrussia.com” with the similar content. 5. Parties’ Contentions A. Complainant The disputed domain name is identical or confusingly similar to the Complainant’s trademark. The addition of the word “russia”, which relates to Russian content, does not preclude finding the confusing similarity. The generic Top-Level Domain (“gTLD”) “.com” is a standard registration requirement and shall be ignored for the purposes of the confusing similarity test. The Respondent has no rights or legitimate interests in the disputed domain name. The website at the disputed domain name offers pirated software of the Complainant. The Respondent is not known under the disputed domain name. The disputed domain name was registered and is being used in bad faith. While registering the disputed domain name the Respondent was well aware of the well-known Complainant’s trademark, since it promptly started to distribute the Complainant’s software at the website at the disputed domain name. The non-authorized distribution of the copyrighted Complainant’s software constitutes bad faith. The Respondent uses the disputed domain name exclusively for the purposes of illegal distribution of the Complainant’s copyrighted software; creating confusion with the Complainant’s registered trademarks, the Complainant’s website, and the Complainant itself; misleading the Complainant’s consumers; creating unfair and uncompetitive conditions for persons wishing to legally purchase the Complainant’s software. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar According to section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”) the applicable gTLD in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Thus, the Panel disregards gTLD “.com” for the purposes of the confusing similarity test. According to section 1.7 of the WIPO Overview 3.0 in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. The Panel finds that the disputed domain name incorporates the entirety of the Complainant’s trademark. According to section 1.8 of the WIPO Overview 3.0 where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The Panel finds that addition of the term “russia” and a hyphen do not prevent a finding of confusing similarity under the first element. Considering the above, the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain name. Furthermore, the Respondent provided no evidence that it holds rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name, which could demonstrate its rights or legitimate interests (see, e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe,WIPO Case No. D2008-0642). The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain name could be reasonably claimed (see, e.g., Sportswear Company S.P.A. v. Tang Hong,WIPOCase No. D2014-1875). The disputed domain name redirected and redirects Internet users to websites with a logo similar to the Complainant’s and prominently featuring the Complainant’s trademark to make the Internet users believe that they actually access the Complainant’s website, or the website authorized by the Complainant. Past UDRP panels confirmed that such actions prove registrant has no rights or legitimate interests in a disputed domain name (see Daniel C. Marino, Jr. v. Video Images Productions, et al.,WIPO Case No. D2000-0598, Houghton Mifflin Co. v. Weatherman, Inc.,WIPO Case No. D2001-0211). According to section 2.13.1 of the WIPO Overview 3.0 Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. According to section 2.13.2 of the WIPO Overview 3.0 Panels are generally not prepared however to accept merely conclusory or wholly unsupported allegations of illegal activity, including counterfeiting, even when the respondent is in default. On the other hand, panels have found that circumstantial evidence can support a complainant’s otherwise credible claim of illegal respondent activity. In the present case, the Panel finds that unauthorized offering for download of the Complainant’s copyrighted software at the websites to which redirects the disputed domain proves it is used for illegal activity and thus cannot confer rights or legitimate interests on the Respondent. Considering the above, the Panel finds the Respondent does not have rights or legitimate interests in the disputed domain name. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Respondent’s use of the disputed domain name to offer the Complainant’s software shows that at the time of the registration of the disputed domain name the Respondent clearly knew and targeted Complainant’s prior registered and well-known trademark, which confirms the bad faith (see, e.g., The Gap, Inc. v. Deng Youqian,WIPO Case No. D2009-0113). According to section 3.1.4 of the WIPO Overview 3.0 the mere registration of a domain name that is identical or confusingly similar to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The Panel is convinced that the Complainant’s trademark is well established through long and widespread use and the Complainant has acquired a significant reputation and level of goodwill in its trademark both in the US and internationally. Thus, the Panel finds that the disputed domain name confusingly similar to the Complainant’s trademark was registered in bad faith. According to paragraph 4(b)(iv) of the Policy 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: 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 this case, the disputed domain name resolved and keeps resolving to a website featuring the Complainant’s trademarks and falsely pretends to be official Complainant’s local website to intentionally attract Internet users by creating likelihood of confusion with the Complainant’s trademark as to the source of the website and its products. The Panel finds the above confirms the disputed domain name was registered and used in bad faith. The use of the disputed domain names for the illegitimate activity is manifestly considered evidence of bad faith (see, e.g., Skyscanner Limited v. WhoisGuard Protected, WhoisGuard, Inc. / petrov petya,WIPO Case No. DCC2020-0003). The Respondent ignored its possibility to comment on the contrary and provide any good explanations to prove its good faith while registering and using the disputed domain name. Considering the above, the Panel finds the disputed domain name was registered and is being used in bad faith. Therefore, the Complainant has established its case under 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 disputed domain name, Taras Kyslyy
Sole Panelist
Date: June 4, 2021
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