The Complainant is Imaginea Technologies, Inc., United States of America (“United States”), represented by McDermott Will & Emery LLP, United States.
The Respondent is Vikas Singh, India.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 4, 2021. On August 4, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 13, 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 August 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 13, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 21, 2021.
The Center appointed Nicholas Smith as the sole panelist in this matter on October 6, 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 BackgroundThe Complainant is a United States company providing product development and enterprise innovation services that was in 2021 acquired by Accenture Global Solutions Limited.
The Complainant holds a trade mark registration in the United States for a mark consisting of the coined word “imaginea” (the “IMAGINEA Mark”) for services in class 42, registered on December 17, 2013 with a date of first use in commerce of February 1, 2010 (Registration No. 4,451,157).
The Domain Name was registered on May 30, 2021. The Domain Name is presently inactive but prior to the commencement of the proceeding resolved to the Complainant’s Website at “www.imaginea.com”. The evidence in the Complaint is that the Domain Name has been used by the Respondent as an email address from which the Respondent sends emails purporting to be official emails from the Complainant to potential job applicants inviting them to provide the Respondent with the job applicant’s personal information and other details.
5. Parties’ Contentions A. ComplainantThe Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s IMAGINEA Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the IMAGINEA Mark, having registered the IMAGINEA Mark in the United States. The Domain Name is a minor misspelling of the IMAGINEA Mark, replacing only the first letter “i” with the letter “l”.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Complainant has not granted any license or authorization for the Respondent to use the IMAGINEA Mark. The Respondent does not use the Domain Name for a bona fide purpose or legitimate noncommercial purpose. Rather, the Domain Name is used for emails impersonating the Complainant (phishing), which does not grant the Respondent rights or legitimate interests in the Domain Name.
The Domain Name was registered and is being used in bad faith. The Domain Name is being used to create emails that impersonate the Complainant to exploit potential job applicants by encouraging them to provide the Respondent with their personal information. This amounts to an attempt to perpetuate fraud.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarTo prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the IMAGINEA Mark, having registrations for the IMAGINEA Mark as a trade mark in the United States.
Disregarding the “.com” generic Top-Level Domain (“gTLD”) as a necessary technical requirement of the Domain Name, the Domain Name is confusingly similar to the IMAGINEA Mark since it almost wholly incorporates the IMAGINEA Mark, replacing the first letter “i” with the letter “l” to create a minor misspelling that would be easy for an Internet user to overlook. The IMAGINEA Mark is clearly recognizable in the Domain Name. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate InterestsTo succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.”
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the IMAGINEA Mark or a mark similar to the IMAGINEA Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. Rather, it appears from the evidence submitted by the Complainant that the Respondent has used the Domain Name to send emails passing itself off as the Complainant to prospective job applicants, encouraging them to provide the Respondent with the prospective applicant’s personal information and other details. Such conduct is fraudulent and is not a bona fide offering of goods or services.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the prima facie case that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithFor the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith (Policy, paragraph 4(b)):
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name to the Complainant who is the owners of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) the Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The Panel finds that the Respondent was aware of the Complainant at the time the Domain Name was registered. The Domain Name has been used to create an email account from which the Respondent sent emails purporting to be emails from the Complainant. Furthermore prior to the commencement of proceedings the Domain Name resolved to the Complainant’s official website. The Respondent does not provide, nor is it apparent to the Panel, any reason why the Domain Name was registered other than by reference to the Complainant and its IMAGINEA Mark. The registration of the Domain Name in awareness of the Complainant and its rights in the IMAGINEA Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent is using the Domain Name to send emails seeking to mislead recipients as to the identity of the sender for its own commercial gain. Such conduct is deceptive, illegal, and in previous UDRP decisions has been found to be evidence of registration and use in bad faith, see The Coca-Cola Company v. Marcus Steiner,WIPO Case No. D2012-1804. The Panel finds that the Respondent is using the Domain Name in bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Nicholas Smith
Sole Panelist
Date: October 15, 2021