The Complainant is International Business Machines Corporation, United States of America (“USA”)represented internally.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 23, 2021. On April 26, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 28, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 29, 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 29, 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 May 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 22, 2021. The Center appointed Dawn Osborne as the sole panelist in this matter on July 22, 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 the owner of the IBM trade mark, registered, inter alia, in the USA for computer goods as registration No 1058803 since February 15, 1977. The Domain Name registered in 2020 has been used for competing pay-per-click links and is associated with an IP address that has offered malware. 5. Parties’ Contentions A. Complainant The Complainant is the owner of the well known trade mark IBM, registered, inter alia, in the United States for computer goods since 1977. The Domain Name registered in 2020 is confusingly similar to the Complainant’s trade mark adding only the generic misspelled term “benifits” and a generic top level domain (“gTLD”) “.com” which do not prevent said confusing similarity. The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant. The Respondent has used the Domain Name for competing pay-per-click links for laptops and software. The Respondent did not answer a cease and desist letter from the Complainant, has used a privacy shield and is associated with an IP address that has offered malware in the past. The use of a domain name for competing pay-per-click links and/or malware is not a bona fide offering of goods or services or a legitimate non commercial or fair use. It is bad faith registration and use diverting Internet consumers for commercial gain. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Domain Name in this Complaint combines the Complainant’s IBM mark (registered in the USA for computer products since 1977), the misspelled dictionary word “benifits" and the gTLD “.com”. The addition of a misspelled dictionary word and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. The addition of the misspelled dictionary word “benifits" and the gTLD “.com” does not prevent confusing similarity between the Domain Name and the Complainant’s IBM mark which is still clearly recognisable in the Domain Name. Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interests The Complainant has not authorised the use of its IBM mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. The Respondent has used the site attached to the Domain Name for competing pay-per-click links and there is a suggestion that the IP address of the Respondent has been associated with malware in the past neither of which is a bona fide offering of goods and services or a legitimate non commercial or fair use. As such, the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy. C. Registered and Used in Bad Faith The Panel notes that the Respondent’s IP address has previously been associated with malware, although there is no evidence that there has been any use of the Domain Name in this regard. The Domain Name has been used for competing commercial pay-per-click links which is confusing and disruptive in that visitors to the site might reasonably believe products offered on that site are connected to or approved by the Complainant. The Complainant’s mark is well known for computer products and the use in the context of laptops and software on the Respondent’s site makes it more likely than not that the Respondent had knowledge of the Complainant and its rights, business and services. Accordingly, the Panel holds that 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 trade mark as to the source, sponsorship, affiliation or endorsement of the web site or products offered on it. This is also likely to disrupt the business of the Complainant. As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and is being used in bad faith and has satisfied the third limb 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 Dawn Osborne
Sole Panelist
Date: August 1, 2021
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