The Complainant is Exelon Corporation, United States of America (“United States”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama.
2. The Domain Names and RegistrarThe disputed domain names
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2021. On August 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 6, 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 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 10, 2021.
The Center appointed Taras Kyslyy as the sole panelist in this matter on October 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 BackgroundCreated in 2000, the Complainant works in various stages of the energy business: power generation, competitive energy sales, and transmission and delivery. The Complainant does business in 48 states of the United States, the District of Columbia and Canada. It employs 32,300 people and achieved revenue of USD 33 billion in 2020. The Complainant is one of the FORTUNE 500 companies, and is traded on the New York Stock Exchange. The Complainant is the parent company of many energy transmission and delivery providers, including Atlantic City Electric, BGE and Pepco Holdings LLC.
The Complainant owns registrations for EXELON trademarks, including the United States trademark registration No. 2409546, registered on November 28, 2000.
The Complainant’s subsidiary Pepco Holdings LLC owns registrations for ATLANTIC CITY ELECTRIC trademarks, including the Untied States trademark registration No. 4428690, registered on November 5, 2013.
The Complainant promotes its range of brands and trademarks through numerous domain names and websites, including “www.exeloncorp.com” and “www.atlanticcityelectric.com”.
The disputed domain names were registered as follows:
The disputed domain names
The disputed domain names are confusingly similar to the Complainant’s trademarks. The disputed domain names consist of the Complainant’s exact or misspelled trademarks with either the addition of the descriptive words or abbreviations in correct spelling or misspelled. The applicable generic Top-Level Domain (“gTLD”) in the disputed domain names is viewed as a standard registration requirement and as such shall be disregarded under the first element confusing similarity test.
The Respondent has no rights or legitimate interests in the disputed domain names. The Respondent is not sponsored by or affiliated with the Complainant in any way. Furthermore, the Complainant has not given the Respondent license, authorization or permission to use the Complainant’s trademarks in any manner, including in the disputed domain names. The Respondent is not commonly known by the disputed domain names. At the time of filing the Complaint, the Respondent was using a privacy service. The Respondent uses the disputed domain names to redirect Internet users to multiple third party websites to capitalize on the reputation and goodwill of the Complainant’s trademarks. As such, the Respondent is not using the disputed domain names to provide a bona fide offering of goods or services as allowed under the Policy. Moreover, the disputed domain names occasionally redirect Internet users to websites featuring links to third party websites, some of which directly compete with the Complainant’s business. The disputed domain names are also being offered for sale in amounts that far exceed the Respondent’s out-of-pocket expenses in registering the disputed domain names. The Respondent registered the disputed domain names between April 2020 and March 2021, which falls significantly after the Complainant filed for registrations of its trademarks and started using them in commerce.
The disputed domain names were registered and are being used in bad faith. The Complainant’s trademarks are well known in the United States and the Respondent was aware of them when registering the disputed domain names. Some of the disputed domain names constitute typosquatting. The Respondent creates a likelihood of confusion with the Complainant and its trademarks by registering the disputed domain names that closely resemble the Complainant’s trademarks and domain names, with the Respondent then attempting to profit from such confusion by redirecting Internet users to multiple third party websites. By creating the likelihood of confusion between the Complainant’s trademarks and the disputed domain names, leading to misperceptions as to the source, sponsorship, affiliation, or endorsement of the disputed domain names, the Respondent has demonstrated a nefarious intent to capitalize on the fame and goodwill of the Complainant’s trademarks in order to increase traffic to the disputed domain names’ websites for the Respondent’s own pecuniary gain. Such nefarious intent is evidenced by the occasional redirection of the disputed domain names to websites that feature multiple pay-per-click links, some of which directly reference the industry in which the Complainant operates. The number of the disputed domain names registered by the Respondent demonstrates that the Respondent is engaging in a pattern of cybersquatting, which is evidence of bad faith registration and use. The Respondent is offering to sell the disputed domain names. The Respondent, at the time of initial filing of the Complaint, had employed a privacy service to hide its identity.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarAccording to section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the applicable gTLD in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Thus, the Panel disregards the gTLD “.com” for the purposes of the confusing similarity test.
According to section 1.7 of the WIPO Overview 3.0, in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. According to section 1.9 of the 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. In the present case the disputed domain names incorporate the entirety of the Complainant's trademarks EXELON or ATLANTIC CITY ELECTRIC either in a correct spelling or an intentional misspelling.
According to section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. In the present case the Panel finds that the addition of terms “corp”, “dorp”, “gcorp”, “orp”, “hrhub”, or “access” does not prevent establishing the confusing similarity of the disputed domain names to the Complainant’s trademarks.
Considering the above, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s trademarks, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Complainant has established prima facie that the Respondent has no rights or legitimate interests in the disputed domain names.
The Respondent is not commonly known by the disputed domain names, which could demonstrate its rights or legitimate interests (see, e.g., World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe,WIPO Case No. D2008-0642).
The Complainant did not license or otherwise agree for use of its prior registered trademarks by the Respondent, thus no actual or contemplated bona fide or legitimate use of the disputed domain names could be reasonably claimed (see, e.g., Sportswear Company S.P.A. v. Tang Hong,WIPO Case No. D2014-1875).
According to section 2.9 of the WIPO Overview 3.0, the use of a domain name to host a parked page comprising pay-per-click links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users. The Panel finds this applies to the present case regarding the disputed domain names.
Noting the risk of implied affiliation between the disputed domain names and the well-known trademarks of the Complainant, the Panel finds that there is no plausible fair use to which the disputed domain names could be put that would not have the effect of being considered somehow connected to the Complainant (see, e.g., Instagram, LLC v. Super Privacy Service LTD c/o Dynadot / Zayed,WIPO Case No. D2019-2897).
Considering the above, and in the absence of the Respondent’s rebuttal to the Complainant’s prima facie case, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain names. Therefore, the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithAccording to section 3.1.4 of the WIPO Overview 3.0, the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith. The Panel is convinced that the Complainant’s trademarks are well established through intensive and widespread use and the Complainant has acquired a significant reputation and level of goodwill in its trademarks at least in the United States and Canada. Thus, the Panel finds that the disputed domain names, which are confusingly similar to the Complainant’s trademarks, were registered in bad faith.
According to section 3.1 of the WIPO Overview 3.0, bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark. To facilitate assessment of whether this has occurred, and bearing in mind that the burden of proof rests with the complainant, paragraph 4(b) of the Policy provides that any one of the following non-exclusive scenarios constitutes evidence of a respondent’s bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s 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 trademark 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.
In this regard, the Panel finds that at least the first and the fourth of the above scenarios apply to the present case confirming the Respondent’s bad faith.
Although at the time of this decision the disputed domain name
Considering the above, the Panel finds that the disputed domain names were registered and are being used in bad faith. Therefore, the Complainant has established its case 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 disputed domain names,
Taras Kyslyy
Sole Panelist
Date: November 24, 2021