The Complainant is Marlink SA, Belgium, represented by Inlex IP Expertise, France.
The Respondent is Sonya Davis, United States of America (“United States”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 13, 2021. On October 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 13, 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 October 14, 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 October 14, 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 October 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 11, 2021.
The Center appointed Leon Trakman as the sole panelist in this matter on November 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 a Belgium company specialized in providing telecommunications services, particularly in cybersecurity in the maritime industry. It conducts its business internationally, such through related companies such as MARLINK SAS in France, MARLINK.INC in the United States, and MARLINK AS in the Netherlands.
The Complainant holds various trademarks in MARLINK, filed in class 38 in different jurisdictions, relating to “Telecommunication services; communication services by satellite; satellite transmission; providing of information relating to communications via satellite”.
These trademarks include, among others, European Union word trademark No. 015333487, registered on October 4, 2016; German trademark No. 39628128, registered on January 12, 1998; Benelux trademark No. 607403, registered on November 1, 1997.
The Complainant also holds European Union and International word and device trademarks. These include European Union trademark No. 015462864, registered on September 16, 2016; International word and device trademark No. 1306931, registered on June 28, 2016; and International word trademark No. 1309586, registered on July 13, 2016, which is also applicable in Algeria, Republic of Korea, Mexico, and Viet Nam.
In addition, the Complainant registered the domain name
The disputed domain name was registered on September 15, 2021. According to the evidence in the Complaint, the disputed domain name resolves to an error page indicating that “This site is temporarily unavailable”.
5. Parties’ Contentions A. ComplainantThe Complainant makes the following contentions:
The disputed domain name is “almost identical” to a trademark or service mark in which the Complainant has rights, contrary to the Policy, paragraph 4(a)(i), and the Rules, paragraphs 3(b)(viii), (b)(ix)(1).
The Respondent has no rights or legitimate interests in the disputed domain name, as required by the Policy, paragraph 4(a)(ii) and the Rules, paragraph 3(b)(ix)(2).
The disputed domain name was registered and is being used “passively” in bad faith, contrary to Policy, paragraphs 4(a)(iii), 4(b), and Rules, paragraph 3(b)(ix)(3).
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Panel determines that the disputed domain name is confusingly similar to the Complainant’s trademark.
The only difference between the Complainant’s trademark and the disputed domain name is the addition of the letter “n”, leading to a doubling of the letter “n” in the disputed domain name. This difference is phonetic only. It does not prevent a finding of confusing similarity between the Complainant’s trademark and the disputed domain name.
Numerous UDRP panels have held that 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. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9. See also PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696; and National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini,WIPO Case No. D2002-1011.
The use of the “.com”, signifying the generic Top-Level Domain (“gTLD”), is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. See WIPO Overview 3.0, section 1.11.
B. Rights or Legitimate InterestsThe Panel determines that the Respondent has no rights or legitimate interests in the disputed domain name.
According to the evidence on record, the Respondent has no business or legal relationship with the Complainant. The Complainant has neither licensed nor otherwise authorized the Respondent to use its trademark to register the disputed domain name. There is also no evidence that the Respondent is commonly known by the disputed domain name.
In the absence of evidence of a legal relationship, or other authorization by the Complainant of the Respondent’s use and registration, such as through a third-party agent, there is no reasonable basis to conclude that the Respondent has any rights in or legitimate interests in the disputed domain name. On the absence of such a right and interest in a similar fact situation, see Crédit Industriel et Commercial S.A. v. CIC Banq,WIPO Case No. D2016-1875.
C. Registered and Used in Bad FaithThe Panel determines that the Respondent has registered and is using the disputed domain name in bad faith.
The Respondent has sought to attract Internet users to its website, and away from the website of the Complainant, by intending to mislead Internet users, or otherwise create the impression among them that the Respondent is the Complainant, or that the Respondent was authorized by the Complainant to act on the Complainant’s behalf.
The Respondent’s bad faith registration and use is evidenced in the fact that it “knew or should have known” of the Complainant’s trademark rights, and nevertheless intentionally registered and used the disputed domain name to incorporate the Complainant’s trademark in which it had no rights or legitimate interests. See Compagnie Générale des Etablissements Michelin v. Trendimg,WIPO Case No. D2010-0484.
The Respondent’s bad faith is evident, too, in the high probability that it knew of the Complainant’s international reputation; and that it intended to take unreasonable advantage of its registration and use of the disputed domain name in the future. In a recent UDRP decision, the panel determined that the Complainant’s trademark MARLINK is well-known and was a significant factor in its determination that the respondent is in bad faith. It stated that: “a quick Internet search shows that the top search results returned for the keyword “marlink” are the Complainant’s official website and affiliated social media pages”. See Marlink SA v. Contact Privacy Inc., Customer 1245005519 / Roberts Matthew, marl Link LLC,WIPO Case No. D2019-1653. For comparable reasoning, see Marlink SAS v. WhoisGuard Protected, WhoisGuard, Inc. / Brian Sacash,WIPO Case No. D2019-2717.
The Respondent’s bad faith is affirmed further by its likely knowledge of the distinctiveness of the Complainant’s business and global reputation in the sector. In support of the Respondent’s most likely knowledge of the Complainant’s trademark is evidence provided of an Internet search of the word “marlink” that resulted in over 322,000 references to it.
Further, the Panel notes that the email servers for the disputed domain name appear to have been activated which means that the disputed domain name could potentially be used to send emails to Internet users which would accentuate their confusion after they used the disputed domain name to access its website through the disputed domain name.
The Panel acknowledges that the Complainant has not adduced any evidence that the Respondent had used the disputed domain name to attract business in bad faith, such as by directing Internet users to its own business operations, or by attempting to sell the disputed name to the Complainant or a third party. The disputed domain name resolves to an error page indicating that “This site is temporarily unavailable”. Notwithstanding the absence of active use of the disputed domain name, it is well established that the Respondent can render its use active in the future. In particular, it can use the disputed domain name to attract Internet users to its own business operations. It can attempt to sell it for profit to the Complainant or a third party or use it for some further bad faith purpose. In this respect, prior UDRP panels have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. See WIPO Overview 3.0, section 3.3.
Given the combination of these factors, the Panel concludes that the Respondent registered and is using the disputed domain name in bad faith.
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
Leon Trakman
Sole Panelist
Date: November 26, 2021