The Complainant is Groupe Lactalis, France, represented by Inlex IP Expertise, France.
The Respondent is Chima Mustafa, Kemtech Industries, United States of America.
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 Domain Name. On September 8, 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 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 17, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2021.
The Center appointed Jeremy Speres as the sole panelist in this matter on November 3, 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 uncontested facts are as follows. The Complainant, Groupe Lactalis, was founded in 1933 and trades as a leading global dairy products producer under its LACTALIS mark.
The Complainant’s LACTALIS mark is registered in many jurisdictions. Most relevant for this matter is United States of America trade mark registration number 2412057 LACTALIS in class 29, bearing a registration date in December 2000.
The Domain Name was registered on August 23, 2021. At the date of filing of the Complaint the Domain Name resolved to a standard form WordPress blog post. At the date of drafting of this Decision the Domain Name resolved to a page indicating that the Domain Name’s hosting account was suspended.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to its well-known LACTALIS mark as a typosquatting variant, that the Respondent has no rights or legitimate interests in the Domain Name, and the Domain Name was registered and has been used in bad faith given that the Respondent has used the Domain Name to send emails impersonating the Complainant in order to solicit fraudulent payments from third parties.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarIt 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 substitution of the second letter “a” in the Complainant’s mark with the letter “e” does not serve to differentiate the overall impression of the Domain Name, which remains aurally and visually highly similar to the mark. Past UDRP panels have found that the substitution of a second letter “a” in a complainant’s mark with an “e” does not rule out confusing similarity (see Alfa Laval Corporate AB v. Contact Privacy Inc. Customer 0148561631 / Erin Dickey, EDickey Ltd,WIPO Case No. D2017-1617).
The Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Complainant’s mark was registered and well-known in many territories, including in the Respondent’s territory, long prior to registration of the Domain Name, as confirmed in numerous UDRP cases (e.g. Groupe Lactalis v. John Kleedofer / Privacy Protection Service INC d/b/a Privacy Protect.org, WIPO Case No. D2014-0133).
The Domain Name is confusingly similar to the Complainant’s mark, the Complainant has certified that the Domain Name is unauthorised by it, the Respondent did not file a Response, and 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 (WIPO Overview 3.0 at section 2.13.1).
The Complainant has thus made out at a prima facie case that the Respondent lacks rights or legitimate interests, the burden of production shifts to the Respondent (WIPO Overview 3.0 at section 2.1), and given that no Response was filed, the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithIt is well accepted that use of a domain name to perpetuate fraud constitutes bad faith (WIPO Overview 3.0 at section 3.4). 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. Consistent with this, the Panel has independently established that the Domain Name has been flagged as a phishing risk in the Google Safe Browsing database.
The Respondent provided false physical address details in the WhoIs. This is an indicator of bad faith (WIPO Overview 3.0 at section 3.2.1). The Respondent also failed to respond to 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 (WIPO Overview 3.0 section 4.3).
The Complainant has satisfied 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
Jeremy Speres
Sole Panelist
Date: November 17, 2021