The Complainant is Sodexo, France, represented by Areopage, France.
The Respondent is Domain Administrator, Nigeria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2021. On September 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 8, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 8, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 10, 2021.
The Center verified that the Complaint together with the amended 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 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 5, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 7, 2021.
The Center appointed Federica Togo as the sole panelist in this matter on October 17, 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 the registered owner of several trademarks consisting and/or containing SODEXO, e.g. European Union Trade Mark registration no. 008346462 for SODEXO (word), registered on February 1, 2010 for goods and services in classes 9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45. This mark has been duly renewed and is in force. International registration no. 964615 for SODEXO, registered on January 8, 2008 for goods and services in classes 9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45. This mark has been duly renewed and is in force. Nigerian trademark registration no. 78131 for SODEXO, registered on December 11, 2007 for goods in class 9. This mark has been duly renewed and is in force.
It results from the information disclosed by the Registrar that the disputed domain name was registered on September 1, 2021 and resolves to website comprising pay-per-click links, which are clearly related to the sector in which the Complainant operates, and some directly reference websites of the Complainant’s competitors.
5. Parties’ Contentions A. ComplainantIt results from the Complainant’s undisputed allegations that the Complainant was founded in 1966 and is one of the largest companies in the world specialized in foodservices and facilities management, with 420,000 employees serving 100 million consumers in 64 countries. It is widely established, among other places, in Nigeria where the Respondent is located. It is one of the largest employers worldwide and provides a wide range of services under its trade name and mark SODEXO through an offer of on-site services, benefit and reward services, and personal and home services.
In addition, the Complainant operates the domain names
The Complainant contends that its trademark SODEXO has a strong reputation and is widely known all over the world.
The Complainant further contends that the disputed domain name is identical or confusingly similar to its trademark SODEXO, since the disputed domain name is composed of the elements “sedexo” and “myway”. In the disputed domain name, the sign “sedexo” is almost identical to the mark and company name SODEXO. The only difference between the signs is the substitution of the first vowel “o” for the vowel “e”. Such a difference corresponds to an obvious misspelling of the SODEXO mark which can be made by an Internet user and is characteristic of typosquatting practice intended to create confusing similarity between the Complainant’s mark and the disputed domain name. The risk of confusion or association with the SODEXO mark is stronger as the Complainant uses the expression “MyWay by Sodexo” for an application. Finally, the disputed domain name resolves to a webpage parking page connecting to the Complainant’s competitor’s websites for CESU (vouchers and cards services for personal and home services).
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. According to the Complainant, the Respondent has no rights in SODEXO as a corporate name, trade name, shop sign, mark, or domain name that would be prior to the Complainant’s rights on SODEXO. The Respondent was not commonly known by the disputed domain name. Moreover, it does not have any affiliation, association, sponsorship, or connection with the Complainant and has not been authorized, licensed, or otherwise permitted by the Complainant or by any subsidiary or affiliated company to register the concerned domain name and to use it.
Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. According to the Complainant’s undisputed allegations, due to the well-known character and reputation of the SODEXO mark, the Respondent undoubtfully knew its existence when it registered the disputed domain name and was also informed about the Complainant’s activities. It is obvious that the Respondent registered the disputed domain name with actual knowledge of the Complainant’s rights in the SODEXO mark, very likely for the purpose of creating confusion with the Complainant’s mark to divert or mislead third parties for the Respondent’s illegitimate profit. The Respondent is using the disputed domain name by exploiting the confusion with the well-known SODEXO mark to attract Internet users and to incite them to click on third party commercial links.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 15(a) of the Rules instructs this Panel to “decide a complaint 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”. Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements in order to obtain an order that the disputed domain names be transferred or cancelled:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name have been registered and are being used in bad faith.
The Panel will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied.
A. Identical or Confusingly SimilarPursuant to paragraph 4(a)(i) of the Policy, the Complainant must establish rights in a trademark or service mark and secondly establish that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
It results from the evidence provided that the Complainant is the registered owner of various trademark registrations for the mark SODEXO. Reference is made in particular to European Union Trade Mark registration no. 008346462 for SODEXO (word), registered on February 01, 2010 for goods and services in classes 9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45. This mark has been duly renewed and is in force. International registration no. 964615 for SODEXO, registered on January 08, 2008 for goods and services in classes 9, 16, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45. This mark has been duly renewed and is in force. Nigerian trademark registration no. 78131 for SODEXO, registered on December 11, 2007 for goods in class 9. This mark has been duly renewed and is in force.
The disputed domain name is composed by the term “myway” preceded by “sedexo”, which is almost an identical reproduction of the trademark SODEXO, the only difference between the term and mark being that the second letter has been replaced in the disputed domain name by the letter “e” instead of the letter “o” in the trademark SODEXO. This single letter difference does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark.
Moreover, this Panel emphasizes that the case at hand is a typical case of “typosquatting”, which occurs when a domain name consists of a misspelling of the complainant’s trademark. According to the consensus view of UDRP panels, a domain name which consists of a common, obvious, or intentional misspelling of a trademark normally is found to be confusingly similar to such trademark, where the domain name contains sufficiently recognizable aspects of the relevant mark, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.9.
Furthermore, it is the view of this Panel that the addition of the term “myway” in the disputed domain name cannot prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark since the Complainant’s trademark is sufficiently recognizable in the disputed domain name, see WIPO Overview 3.0 at section 1.8.
In the light of the above, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsPursuant to paragraph 4(a)(ii) of the Policy, the Complainant must secondly establish that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests to the disputed domain name. In the Panel’s view, based on the undisputed allegations stated above, the Complainant has made a prima facie case that none of these circumstances are found in the case at hand and, therefore, that the Respondent lacks rights or legitimate interests in the disputed domain name.
According to the Complaint, which has remained unchallenged, the Complainant has no relationship in any way with the Respondent and did, in particular, not authorize the Respondent’s use of the trademark SODEXO or the registration of the disputed domain name.
Furthermore, the Panel notes that there is no evidence showing that the Respondent might be commonly known by the disputed domain name in the sense of paragraph 4(c)(ii) of the Policy.
In addition, it results from the undisputed evidence before the Panel that the disputed domain name resolves to a parking website comprising of pay-per-click links that compete with or capitalize on the Complainant’s trademark. UDRP panels have found that the use of a domain name to host a parked page comprising of 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 (see WIPO Overview 3.0 at section 2.9). This Panel shares this view and notes that the Complainant’s trademark SODEXO has gained a reputation. Therefore, such use can neither be considered as a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
It is acknowledged that once the Panel finds a prima facie case is made by a complainant, the burden of production under the second element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Since the Respondent in the case at hand failed to come forward with any allegations or evidence, this Panel finds, in the circumstances of this case, that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has therefore satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithAccording to paragraph 4(a)(iii) of the Policy, the Complainant must thirdly establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, “in particular but without limitation”, be evidence of the disputed domain name’s registration and use in bad faith. One of these circumstances is that the Respondent by using the disputed domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location (paragraph 4(b)(iv) of the Policy).
It is the view of this Panel that these circumstances are met in the case at hand. The Complainant’s trademarks have existed for many years and have gained a reputation. Therefore, this Panel has no doubt that the Respondent positively knew or should have known that the disputed domain name consisted of the Complainant’s SODEXO trademarks when it registered the disputed domain name. Registration of the disputed domain name in awareness of the reputed SODEXO mark and in the absence of rights or legitimate interests in this case amounts to registration in bad faith (see, e.g., Sanofi v. WhoIs Guard Protected, WhoIs Guard, Inc. / Todd Peter,
WIPO Case No. D2020-2060; Virgin Enterprises Limited v. Domains By Proxy LLC, Domainsbyproxy.com / Carolina Rodrigues, Fundacion Comercio Electronico,
WIPO Case No. D2020-1923; “Dr. Martens” International Trading GmbH and “Dr. Maertens” Marketing GmbH v. Petra Wirth,
WIPO Case No. D2018-0246; KOC Holding A.S. v. VistaPrint Technologies Ltd,
WIPO Case No. D2015-1910; The Chancellor, Masters and Scholars of the University of Oxford v. Oxford College for PhD Studies, supra; The Chancellor, Masters and Scholars of the University of Oxford v. Almutasem Alshaikhissa,
WIPO Case No. D2014-2100; and Deutsche Lufthansa AG v. Mustermann Max, Muster AG,
WIPO Case No. D2015-1320).
The Complainant also provided evidence that the disputed domain name resolves to a parking website comprising of pay-per-click links that compete with or capitalize on the Complainant’s trademark, so that the Panel is satisfied that the disputed domain name, which is confusingly similar to the Complainant’s trademark, is being used to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s websites or other online locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s websites or locations, or of a product or service on the Respondent’s websites or locations.
In the light of the above, the Panel finds that the disputed domain name has been registered and is being used in bad faith pursuant to 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
Federica Togo
Sole Panelist
Date: October 31, 2021