The Complainant is Alstom, France, represented by Lynde & Associes, France.
The Respondent is Kiran Mehta, United States of America (“US”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 25, 2021. On August 25, 2021, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On August 26, 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 September 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 22, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2021.
The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on October 1, 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 French company founded in 1928, which operates globally in rail infrastructure, power generation and transmission. It employs 36,000 professionals in more than 60 countries. One of these countries of operation are the US, where the Respondent is based, according to the domain registration. In the US, the Complainant employs 2,200 people, dispatched across 15 sites.
The Complainant holds registrations comprising the word ALSTOM in numerous jurisdictions around the world, including the following trademark registrations:
- US trademark registration No. 2898433 ALSTOM (figurative mark), registered on November 2, 2004, in classes 35, 37, 39, 40, 41, 42;
- US trademark registration No. 4236513 ALSTOM (figurative mark), registered on November 6, 2012, in class 12;
- US trademark registration No. 4570546 ALSTOM, registered on July 22, 2014, in classes 1, 6, 7, 8, 9, 11, 12, 16, 17, 19, 24, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45;
- International trademark registration No. 706292 ALSTOM, registered on 28, August 28, 1998 in classes 1, 2, 4, 6, 7, 9, 11, 12, 13, 16, 17, 19, 24, 35, 36, 37, 38, 39, 40, 41, 42;
The Complainant is also the registrant of numerous domain names under various generic and country-code Top-Level-Domains (“gTLDs” and “ccTLDs”) that reflect its trademark, such as:
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All the above-mentioned domain names are redirected to the Complainant’s group website, “ www.alstom.com”.
The disputed domain name was registered on August 23, 2021, and at the time of filling the Complaint, it used to resolve to an inactive error page. The disputed domain name was also used in e-mail correspondence that purports to be allegedly from specific employees of the Complainant and that attempts to fraudulently obtain payment for specified amounts to a bank account, which does not belong to the Complainant. At the time of the Decision, the disputed domain name resolves to a webpage displaying the text "Welcome to CentOS".
5. Parties’ Contentions A. ComplainantThe Complainant considers that the disputed domain name
The Complainant’s trademarks are therefore wholly and identically contained in the disputed domain name. The term “GROVP” will be perceived as a misspelling of the word GROUP, which means that the Internet users will read “group” instead of “grovp”. The Complainant asserts that the Respondent chose this domain name to take advantage of the Complainant’s partners, by imitating its e-mail address format “(…)@alstomgroup.com”.
Furthermore, the Complainant asserts that the Respondent has failed to prove its rights or legitimate interests in respect of the disputed domain name under paragraph 4(a)(ii) of the Policy. The Complainant has not authorized, licensed or permitted the Respondent to register or use a domain name incorporating their trademarks. The Respondent has not applied for or obtained any trademark registrations related to the sign ALSTOM. He is not either commonly known under the name ALSTOM. Additionally, the Complainant claims that the Respondent used an e-mail server with the disputed domain name to send numerous credulous e-mails supposedly on behalf of the company ALSTOM, which shows that there is no legitimate interest in the disputed domain name.
According to the Complainant the disputed domain name was registered in bad faith within the meaning of paragraph 4(a)(ii) of the Policy because of the following points:
- The disputed domain name incontestably imitates the Complainant’s trademarks and was acquired long after they became well-known.
- The Respondent has been using the disputed domain name in bad faith to impersonate the Complainant.
- The disputed domain name is a clear case of deliberate typo-squatting.
- The Respondent attempts by any means to conceal his identity.
- The Respondent has a history in registering domain names that infringe trademark rights and in typo-squatting.
The Complainant requests that the disputed domain name be transferred.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 15(a) of the Rules requires that the Panel’s decision be made “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
It has been a consensus view in previous UDRP decisions that a Respondent’s default (i.e., failure to submit a response) would not by itself mean that the Complainant is deemed to have prevailed; a Respondent’s default is not necessarily an admission that the Complainant’s claims are true (See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
A Complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that:
(A) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(B) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(C) the disputed domain name has been registered and is being used in bad faith.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark ALSTOM, in which the Complainant has established rights through registration.
The disputed domain name incorporates the entirety of the Complainant’s trademark ALSTOM, followed by the element GROVP, which has no meaning, and the gTLD“.com”. The relevant element is clearly the Complainant’s trademark and the addition of the element “grovp” does not prevent a finding of confusing similarity.
See 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. The nature of such additional term(s) may however bear on assessment of the second and third elements”.
The element “grovp” has no meaning but is intended to be perceived by the Internet users as “group” due to the similarity of the letters “u” and “v”. Thereby, the disputed domain name in its entirety would be perceived as
Section 1.9 of the WIPO Overview 3.0 states: “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. Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters (e.g., upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.” What applies in the case of an intentional misspelling of a trademark that is still clearly identifiable must apply even more in the case where a trademark has been incorporated in its entirety and only an additional element contains an intentional misspelling.
TLDs are generally disregarded, when evaluating the identity or similarity of the Complainant´s mark to the disputed domain name under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the TLD (see section 1.11 of the WIPO Overview 3.0).
Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the Complainant, panels have recognized that proving a Respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the Respondent. As such, where a Complainant makes out a prima facie case that the Respondent lacks rights or legitimate interests, the burden of production on this element shifts to the Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the Respondent fails to come forward with such relevant evidence, the Complainant is deemed to have satisfied the second element (see section 2.1 of the WIPO Overview 3.0).
The Panel notes that the Respondent has not filed any response and thus did not deny the Complainant’s assertions, nor brought any information or evidence for demonstrating any rights or legitimate interests.
The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that the Respondent is not affiliated with it in any way and that it never authorized the Respondent to use its trademark as part of the disputed domain name.
The Complainant further contends that the Respondent is not known under the disputed domain name and does not make any bona fide use, neither commercial nor noncommercial, of the same, being emphasized that the disputed domain name does not resolve towards an active webpage with substantive content but to an error page.
The Complainant therefore made a prima facie case that the Respondent lacks rights or legitimate interests to which the Respondent failed to respond.
Accordingly, the Panel finds that the Complainant satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Complainant has used the ALSTOM name for many decades and has held trademark rights for ALSTOM since at least 1998. As the Complainant states, its trademark has been recognized as well-known by previous UDRP panels. The Complainant provided inter alia decision Alstom S.A. and General Electric Company v. Sichuan Electricity Transmission and Distribution Engineering,WIPO Case No. DCO2016-0032 concerning the domain name
The disputed domain name was registered in 2021 and incorporates the Complainant’s well-known mark ALSTOM wholly together with the element “grovp”. As already stated in point 6.A of this Decision, the element “grovp” is intended to be perceived by the Internet users as “group” due to the similarity of the letters “u” and “v”, a reference to the Complainant’s domain name
It is very likely that a possible confusion was intended. In particular, because the disputed domain name was used actively in e-mail correspondence that purports to be from specific employees of the Complainant and which attempts to fraudulently obtain payments. Therefore, the intention was not only to mislead and divert the Internet users, but specifically the Complaint’s partners, which were the recipients of such e-mails, and to profit from this misleading.
Furthermore, the fact that the disputed domain name resolves to an active website does not prevent a finding of bad faith in these circumstances (see section 3.3 of the WIPO Overview 3.0).
For these reasons, the Panel considers that the Respondent’s conduct constitutes bad faith registration and use of the disputed domain name.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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 name
Christian Gassauer-Fleissner
Sole Panelist
Date: October 15, 2021