The Complainant is Société des Produits Nestlé S.A, Switzerland, represented by Studio Barbero, Italy.
The Respondent is bomba k, Nigeria. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 9, 2021. On July 12, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name(s). On July 12, 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 July 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 18, 2021. The Center appointed Jeremy Speres as the sole panelist in this matter on August 27, 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 uncontested facts are as follows. The Complainant owns the majority of the trade marks of the Nestlé Group, which was founded in 1866 and has for many decades sold products and services, primarily in the food and beverage industry, all over the world including in the Respondent’s country of Nigeria, under the well-known NESTLÉ mark. In Nigeria, the NESTLÉ brand has been sold for over 55 years and the Complainant has a considerable presence in Nigeria with 2,300 direct employees and manufacturing and office locations. The Complainant owns many trade mark registrations for NESTLÉ around the world, the most relevant of which is Nigerian registration number 49095 NESTLÉ in class 5, registered in 1986. The Domain Name was registered on July 5, 2021 and, as at the date of filing of the Complaint and drafting of this Decision did not resolve to any website. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its mark as a typosquatting variant, the Respondent has no rights or legitimate interests in it, and it was registered and used in bad faith given that it has been used to impersonate employees of the Complainant to solicit fraudulent payments. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar It is well established that where a domain name consists of a misspelling of a trade mark such that the mark is recognisable, as in this case, the domain name is confusingly similar. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.9. The addition or deletion of diacritics such as the acute accent in this case is immaterial and does not prevent a finding of identity or confusing similarity (Société des Produits Nestlé S.A. v. Sonia de Ferrero,WIPO Case No. D2016-1300). The addition of a single letter “a” does not serve to differentiate the overall impression of the Domain Name, which remains aurally and visually nearly identical to the mark. Past Panels have found just that (e.g. Dollar Bank, Federal Savings Bank v. Dollarabank.com Owner, c/o whoisproxy.com Ltd. / Tulip Trading Company,WIPO Case No. D2016-0699). The Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent (section 2.1 of the WIPO Overview 3.0). Here, there is a prima facie case which the Respondent has failed to rebut. The Complainant’s evidence establishes that the Complainant’s mark was registered, used extensively, and well-known in many territories prior to registration of the Domain Name, including in Nigeria. The Domain Name, being a typographical variant of the mark, is confusingly similar to the Complainant’s well-known, registered mark and the Complainant has certified that the Domain Name is unauthorised by it. There is no evidence that any of the circumstances set out in paragraph 4(c) of the Policy pertain. The Complainant has presented credible, uncontroverted evidence that the Domain Name has been used to impersonate its employees for the purpose of soliciting undue payments. Panels have categorically held that use of a domain name for illegal activity (e.g., phishing, impersonation, or other types of fraud) can never confer rights or legitimate interests (see section 2.13.1 of the WIPO Overview 3.0). The Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith It is well accepted that use of a domain name to perpetuate fraud constitutes bad faith (section 3.4 of the WIPO Overview 3.0). That fraud was the intention of the Respondent upon registration of the Domain Name, and that the Respondent was aware of and targeted the Complainant’s mark, is clear from the evidence presented by the Complainant showing that the Domain Name has been used to impersonate the Complainant’s employees to solicit payments that are not due and thus fraudulent. The Respondent provided false and incomplete physical address details in the WhoIs. This is an indicator of bad faith (section 3.2.1 of the WIPO Overview 3.0). The Respondent failed to respond to the Complainant’s cease and desist correspondence and the Complaint. Under the Rules, paragraph 14(b), a panel may draw inferences from the respondent’s default where a particular conclusion is prima facie obvious, where an explanation is called for but is not forthcoming, or where no other plausible conclusion is apparent (section 4.3 of the WIPO Overview 3.0; see also Comerica Bank v. Adex Adex,WIPO Case No. D2016-1438). 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 Domain Name Jeremy Speres
Sole Panelist
Date: September 7, 2021
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