The Complainant is Aalborg Portland Holding A/S, Denmark, represented by Bech-Bruun Law Firm, Denmark.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Dave Vasos, NS GROUP LLC, United States of America. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 2, 2021. On May 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 4, 2021, 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 May 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 25, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 26, 2021. The Center appointed Andrew F. Christie as the sole panelist in this matter on June 4, 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 well-established company with around 27% share of global trade in white cement. It was founded in 1889 and has produced white cement since 1930. The Complainant, which has been headquartered in Aalborg, Denmark since its foundation, has an operational presence in 18 countries, a commercial presence in 70 countries, and employs around 3,000 people worldwide. The Complainant is the owner of Danish Registration No. VR 200504834 for the word trademark AALBORG PORTLAND (filed on November 29, 2005; registered on December 1, 2005). The Complainant’s subsidiary company Aalborg Portland A/S is the registrant of the domain names The disputed domain name was registered on September 16, 2020. The Complainant has provided copies of emails sent to an employee of the Complainant falsely purporting to be from the Chief Financial Officer of the Complainant, from an email address that uses the disputed domain name. One of these emails requested an employee of the Complainant to provide confidential customer information. Another of these emails requested an employee to make urgent manual payment of an invoice purporting to be from a Swedish company for a substantial amount. The Complainant appears to have reported these actions to the Danish police in November 2020. On November 27, 2020, the Complainant contacted the Registrar requesting that the disputed domain name be blocked and locked down immediately. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to a trademark in which it has rights because: (i) the Complainant’s AALBORG PORTLAND trademark has a high degree of distinctiveness and is well known due to widespread international use; (ii) the only difference between the disputed domain name and the Complainant’s trademark is the use of the letter “q” in place of the letter “g” in the first word in the Complainant’s trademark; (iii) aurally and visually the disputed domain name is highly similar to the Complainant’s trademark; (iv) it has been accepted by UDRP panels that an obvious or intentional misspelling does not avoid confusing similarity between a domain name and a trademark; and (v) the generic Top-Level Domain (“gTLD”) of the disputed domain name is generally disregarded in evaluating confusing similarity. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name because: (i) the disputed domain name has been used for illegal activity (which has been reported to the police) that involves unauthorized access to confidential customer information, impersonations of key employees at the Complainant, and financial fraud; (ii) these fraudulent actions were carried out shortly after the disputed domain name was registered, which supports the view that the sole purpose of the registration was to conduct illegal activity; and (iii) the Respondent’s reason for creating the disputed domain name was to confuse the Complainant’s employees and customers by taking advantage of a difference between the Complainant’s trademark and the disputed domain name that is not easily recognizable. The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) the Respondent appears to have acquired the disputed domain name on September 16, 2020, which is many years after the Complainant had registered and used its trademark; (ii) the disputed domain name has been registered with only minor alterations, which raises the preliminary assumption that it has been registered for some illegitimate purpose; (iii) the Respondent has used the disputed domain name to pretend that it is the Complainant, and in particular to create false emails pretending that they are genuine emails coming from a senior employee of the Complainant; (iv) the disputed domain name is used intentionally to deceive employees of the Complainant into providing confidential information; and (v) as the disputed domain name was used to contact employees and customers of the Complainant it is unlikely that the Respondent is unaware of the Complainant’s trademark. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Once the gTLD “.com” is ignored (which is appropriate in this case), the disputed domain name consists of the whole of the Complainant’s registered word trademark AALBORG PORTLAND except that the letter “g” in “aalborg” is replaced by the letter “q”. It is likely that a significant proportion of Internet users will not notice the letter substitution, and so will read the disputed domain name as being the Complainant’s trademark. In any case, it is clear that this letter substitution is an intentional misspelling of the Complainant’s trademark. A misspelling does not prevent a finding of confusing similarity of the disputed domain name with the Complainant’s trademark. As provided in section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its AALBORG PORTLAND trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name was used in email addresses for email communications to employees of the Complainant that purported to be from the Chief Financial Officer of the Complainant requesting confidential customer information and manual payment of an invoice. Given the confusing similarity of the disputed domain name to the Complainant’s trademark and the absence of any relationship between the Respondent and the Complainant, such a use of the disputed domain name is neither a bona fide use nor a legitimate noncommercial or fair use of the disputed domain name. The Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the Respondent has not rebutted this. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The disputed domain name was registered many years after the Complainant first registered its AALBORG PORTLAND trademark. It is inconceivable that the Respondent registered the disputed domain name ignorant of the existence of the Complainant’s trademark, given that the trademark has been widely used and that the disputed domain name consists of the trademark with the mere substitution of one letter as part of an intentional misspelling. Furthermore, the evidence on the record provided by the Complainant indicates that the Respondent has used the disputed domain name for attempted commercial gain, by creating confusion in the minds of the Complainant’s employees as to an association between the Complainant and emails sent by the Respondent from the address using the disputed domain name. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 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, Andrew F. Christie
Sole Panelist
Date: June 18, 2021
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