Complainant is Notch Up, France, represented by Coblence Avocats, France.
Respondent is Lori Fulbright, Fulbright LTD, Viet Nam.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2021. On September 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 30, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center sent an email to Complainant on October 1, 2021, regarding the additional registrant information provided by the Registrar and Complainant submitted an amendment to the Complaint the same day.
The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on October 4, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 24, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 25, 2021.
The Center appointed Marina Perraki as the sole panelist in this matter on November 8, 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 BackgroundComplainant is an advertising and communication agency. It maintains its main website at “www.notchup.fr”. Per Complaint, Complainant enjoys a certain reputation and has well known clients.
Complainant owns, per Complaint, through its two managing directors, and uses the French trademark 427315 NOTCH UP, filed on May 19, 2006, and registered on September 9, 2006 for services in international class 35. NOTCH UP is also the corporate name of Complainant registered in the commercial registry and used by Complainant.
The Domain Name was registered on August 30, 2021, and at the time of filing the Complaint, lead to a website mimicking that of Complainant and reproducing Complainant’s trademark, Complainant’s website structure, photographs, graphic elements, fonts, tabs, legal notices and website plan, as well as Complainant’s contact details (the Website). The Website included a Team section, where false profiles of persons appear. It also contains a Log In section where users are asked to enter their user name and password. At the time of this Decision, the Domain Name resolves to an error page.
Complainant was not able to locate any entity with the registered details of Respondent namely Fulbright LTD, Viet Nam.
5. Parties’ Contentions A. ComplainantComplainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy lists three elements, which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarComplainant has demonstrated rights through registration and use on the NOTCH UP trademark.
The Panel finds that the Domain Name is identical to the NOTCH UP trademark of Complainant.
The generic Top-Level Domain (“gTLD”) “.agency” is disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons only (Rexel Developpements SAS v. Zhan Yequn,
WIPO Case No. D2017-0275).
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to Respondent of the dispute, Respondent’s 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) Respondent (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complainant, Respondent was not authorized to register the Domain Name.
Respondent has not demonstrated any preparations to use, or has not used the Domain Name or a trademark corresponding to the Domain Name in connection with a bona fide offering of goods or services.
On the contrary, as Complainant demonstrated, the Domain Name is used to host the Website to impersonate Complainant and attempt to mislead Internet users into thinking that the services purportedly offered on the Website originate from Complainant. Such use demonstrates neither a bona fide offering of goods nor a legitimate interest of Respondent (Arkema France v. Aaron Blaine,
WIPO Case No. D2015-0502). In addition, the nature of the Domain Name, consisting of Complainant’s trademark carries a risk of implied affiliation (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.5.1).
The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith.
Because the NOTCH UP trademark had been used and registered by Complainant before the Domain Name registration, the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering the Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc.,
WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net,
WIPO Case No. D2000‑0226).
Respondent should have known about Complainant’s rights, as such knowledge is readily obtainable through a simple browser search and also due to Complainant’s nature of business, provided also online (see Caesars World, Inc. v. Forum LLC,
WIPO Case No. D2005-0517; Compart AG v. Compart.com / Vertical Axis Inc.,
WIPO Case No. D2009-0462).
Furthermore, the content of the Website gives the impression that it originates from Complainant, prominently displaying NOTCH UP signs on the Website and mimicking the website of Complainant, thereby giving the false impression that the Website emanates from Complainant and is its main website. This further supports registration in bad faith reinforcing the likelihood of confusion with Complainant’s trademark and business, as Internet users are likely to consider the Domain Name as in some way endorsed by or connected with Complainant (WIPO Overview 3.0, section 3.1.4 and 3.2.1).
The above further removes any doubt that Respondent knew of Complainant and chose the Domain Name with knowledge of Complainant and its industry (Safepay Malta Limited v. ICS Inc.,
WIPO Case No. D2015‑0403).
As regards bad faith use, Complainant demonstrated that the Domain Name was employed to host a Website, which appeared falsely to be that of Complainant.
Furthermore, the use of the Domain Name to resolve to a website passing itself off as the website of Complainant, whether for phishing of sensitive data from Internet users, or otherwise seeking to take unfair advantage of Complainant’s mark, supports a finding of bad faith in these circumstances. See section 3.4 of the WIPO Overview 3.0.
Under these circumstances and on this record, the Panel finds that Respondent registered and used the Domain Name in bad faith.
Complainant has established Policy, paragraph 4(a)(iii).
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
Marina Perraki
Sole Panelist
Date: November 22, 2021