The Complainant is F5 Networks, Inc., United States of America, represented by Azora Law, United States of America.
The Respondent is Mr. Scott Brown, Beale G, 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 June 2, 2021. On June 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 3, 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 June 11, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 8, 2021. The Center appointed Evan D. Brown as the sole panelist in this matter on July 16, 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 in the business of providing software development services, web application services, computer and software consulting services, software monitoring services, application management services, and services related to servers and networks. It owns the mark F5 and variations thereof, and has registrations for that mark, including United States Reg. No. 2427084, registered February 6, 2001. The disputed domain name was registered on August 3, 2004. The Respondent has used the disputed domain name to establish a website offering web hosting services, which the Complainant asserts to be related to the services the Complainant provides. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar This element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain name is identical or confusingly similar to that mark. The Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant owns registrations for the F5 mark (that predate the registration of the disputed domain name). The disputed domain name incorporates the F5 mark in its entirety – this is sufficient here to establish confusing similarity. The presence of the additional dictionary word “group” does not prevent a finding of confusing similarity. The Panel finds that the Complainant has established this first element under the Policy. B. Rights or Legitimate Interests The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating evidence of rights or legitimate interests shifts to the Respondent. The Complainant has established, prima facie, that the Respondent lacks rights or legitimate interests in the disputed domain name. On this point, the Complainant asserts that: - The Respondent is not authorized by or otherwise known to the Complainant. - The Respondent has no right, title, interest, or authorization to use Complainant’s F5 marks. - The Respondent is using the disputed domain name for services that are confusingly similar to the services provided by the Complainant. More specifically, the Respondent’s principal business appears to trade on traffic generated as a result of interest in the F5 marks. Further, the Respondent is attempting to generate internet traffic based on the goodwill associated with the F5 marks. - This continued, prominent, pervasive, and unauthorized use of the F5 marks by the Respondent will lead to the dilution and tarnishment of the Complainant’s valuable trademark rights. These facts establish the Complainant’s prima facie showing. There is no Response to introduce evidence or argument to rebut this prima facie showing. The Panel finds that the Complainant has established this second element under the Policy. C. Registered and Used in Bad Faith The Policy requires a complainant to establish that the disputed domain name was registered and is being used in bad faith. The facts of this case as set out above demonstrate that the Respondent registered the disputed domain name for commercial gain or otherwise to interfere in the business of the Complainant, and to trade on the Complainant’s goodwill and reputation. By using the disputed domain name to set up and operate a website that appears to infringe on the Complainant’s trademark rights (i.e., by selling services similar to those of the Complainant), the Respondent has used the disputed domain name in bad faith. Bombas LLC v. Contact Privacy Inc. Customer 0155130506 / Mark Hernandez, Bombas Clothing,WIPO Case No. D2019-2685. For these reasons, the Panel finds that the disputed domain name was 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 Evan D. Brown
Sole Panelist
Date: July 30, 2021
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