The Complainant is Callaway Golf Company, United States of America (“United States”), represented by Silka AB, Sweden.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Anthony Fulce, Callaway Golf, United States. 2. The Disputed Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 15, 2021. On April 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 16, 2021, the Registrar transmitted by email to the Center its verification 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 19, 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 amendment to the Complaint on April 20, 2021. The Center verified that the Complaint together with the amendment to 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 April 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 13, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 14, 2021. The Center appointed Colin T. O'Brien as the sole panelist in this matter on May 21, 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 is a golf equipment and active lifestyle company with a portfolio of brands, including Callaway Golf, Odyssey, OGIO, Travis Mathew and Jack Wolfskin. The Complainant sells premium golf clubs, golf balls, golf bags, golf accessories, lifestyle apparel, footwear, backpacks, sport and travel bags. The Complainant trademark registrations for the following marks in the United States and the European Union: CALLAWAY GOLF (United States Reg. No. 2,160,157) registered May 26, 1998; CALLAWAY GOLF and Design (United States Reg. No. 2,161,569) registered June 2, 1998; CALLAWAY GOLF (United States Reg. No. 2,160,406) registered May 26, 1998; and CALLAWAY GOLF (European Union Reg. No. 006865265) registered on October 7, 2009. The Disputed Domain Name was registered on April 4, 2021. The Disputed Domain Name was redirecting to the Complainant’s official website “www.callawaygolf.com”. 5. Parties’ Contentions A. Complainant The Disputed Domain Name integrates the Complainant’s CALLAWAY GOLF trademark in its entirety. The gTLD “.careers” need not necessarily be taken into account in the assessment of confusing similarity. The Disputed Domain Name is being redirected to the homepage of the Complainant’s official website UDRP panels have categorically held that the use of a domain name for illegal activity (e.g., phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on the Respondent (see section 2.13, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The website connected to the Disputed Domain Name is aimed to mislead Internet users into believing that the Disputed Domain Name is operated by the Complainant. The Respondent has chosen the Disputed Domain Name to deliberately attract Internet users to its website in the mistaken belief that it is a Disputed Domain Name of the Complainant, or otherwise linked to or authorized by the Complainant. Noting the Complainant’s name and trademark is incorporated in the Disputed Domain Name together with the gTLD “.careers”, there is a high risk of implied affiliation. The Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of the products on its website. Furthermore according to the Complainant, there is a high risk that fraudulent emails are being distributed from the Disputed Domain Name as the Mail Exchange (MX) records are active and that when Internet users receive an email from the Disputed Domain Name and they check the content of the relevant website, they will be redirected to the Complainant’s official website which could convince them that any communication is indeed sent by the Complainant. The Respondent’s use of the Disputed Domain Name to redirect Internet traffic to the Complainant's own website implies bad faith as there is a risk that the Respondent may at any time cause Internet traffic to redirect to a website that is not that of, or associated with, the Complainant and as it may increase customer confusion that the Disputed Domain Name is somehow licensed or controlled by the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has demonstrated it owns registered trademark rights in the CALLAWAY GOLF marks, and has shown that no other entity has rights in or uses the Complainant’s Marks. The TLD “.careers” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Accordingly, the Disputed Domain Name is identical to a mark in which the Complainant has rights. See WIPO Overview 3.0, section 1.8, and Hoffmann-La Roche AG v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org / Conan Corrigan,WIPO Case No. D2015-2316. Accordingly, the Disputed Domain Name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant’s assertions against the Respondent are somewhat confusing but they establish a prima facie case that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Disputed Domain Name resolves to the Complainant’s homepage without the authorization of the Complainant that the Complainant asserts could mislead Internet users into believing the Disputed Domain Name is owned by the Complainant. This confusion could be used in the future to send emails for phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud. After a complainant has made a prima facie case, the burden of production shifts to the Respondent to present evidence demonstrating rights or legitimate interests in the Disputed Domain Name. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Here, the Respondent has provided no evidence of any right or legitimate interest in the Disputed Domain Name. Furthermore, the nature of the Disputed Domain Name, comprising the Complainant’s trademark in its entirety in combination with the TLD “.careers”, carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1. In the absence of any evidence indicating a legitimate reason for registering the Disputed Domain Name, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Disputed Domain Name was registered after the Complainant first registered and used its CALLAWAY GOLF Marks. Given the evidence provided by the Complainant it is clear that the Respondent knew of the Complainant’s Marks and knew that it had no rights or legitimate interests in the Disputed Domain Name. Upon the evidence before the Panel, there is no benign reason for the Respondent to have registered the Disputed Domain Name, comprising the Complainant’s trademark in its entirety, and being used for deceptive purposes. Further, the use of the Disputed Domain Name by the Respondent is in bad faith. Paragraph 4(b)(iv) states that evidence of bad faith may include a respondent’s use of a domain name to intentionally attempt to attract Internet users, for commercial gain. The Complainant has submitted evidence that the Respondent activated the email services 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 Disputed Domain Name Colin T. O'Brien
Sole Panelist
Date: May 24, 2021
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