The Complainant is JHO Intellectual Property Holdings, LLC, United States of America (“United States”), internally represented.
The Respondent is WhoisSecure, United States / kelechi chukwuemeka, OGA MEDIA LTD, Nigeria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 5, 2021. On November 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 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 November 16, 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 amendment to the Complaint on November 18, 2021.
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 the Respondent of the Complaint, and the proceedings commenced on November 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 9, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 10, 2021.
The Center appointed Steven A. Maier as the sole panelist in this matter on December 16, 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 corporation located in Florida, United States. It is the licensor of the trademark BANG ENERGY to a corporation named Vital Pharmaceuticals, Inc., which is a supplier of energy drinks.
The Complainant is the owner of various registrations for the trademark BANG ENERGY, including for example:
- United States trademark registration number 6255043 for the word mark BANG ENERGY, registered on January 26, 2021 in International Classes 5 and 32; and
- International trademark number 1529009 for the word mark BANG ENERGY, registered on April 7, 2020 in International Classes 5 and 32.
The disputed domain name was registered on September 2, 2021.
The Complainant provides evidence that the disputed domain name has resolved to a website at “www.bangenergys.com”, further particulars of which are set out below.
5. Parties’ Contentions A. ComplainantThe Complainant states that Vital Pharmaceuticals, Inc is the third largest supplier of energy drinks in the United States, selling over USD 1 billion of such products every year. It states that the BANG ENERGY branded drinks are the company’s flagship product and are promoted through traditional channels and social media reaching billions of potential customers. The Complainant exhibits extracts from its website at “www.bangenergy.com”.
The Complainant submits that the disputed domain name is confusingly similar to its trademark BANG ENERGY, differing from that trademark only by the addition of the letter “s” within the disputed domain name.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name, because it has used the disputed domain name solely for the purpose of a fraudulent scheme as described further below.
The Complainant submits that the disputed domain name was registered and has been used in bad faith. It produces screenshots of the Respondent’s website as of November 29, 2021, which represents itself as the website of “Bang Energy Drinks” and includes an introductory message from a person claiming to be the founder of the BANG ENERGY brand, as well as numerous images of the Complainant’s products. The website purports to offer the visitor the opportunity to participate in a “Wrap and Get Paid” campaign, whereby the participant will apparently be paid to have BANG ENERGY advertising (known as “auto wraps”) applied to their car and to drive that advertising around for up to two months. The Complainant contends, however, that this promotion is in fact a scam. The Complainant states that individuals who sign up for the scheme receive a cheque from the Respondent and are instructed to deposit this in their bank account and then pay for the car wrapping. However the Respondent’s cheque is fraudulent and does not clear, so the victim has transferred their own money to the scammer and has no way to recover it. The Complainant exhibits media coverage referring to the scam and to related police investigations.
The Complainant requests the transfer of the disputed domain name.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are that:
(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 has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Complainant has demonstrated that it has registered trademark rights in the name and mark BANG ENERGY. The disputed domain name is identical to that trademark but for the addition of a letter “s” within the disputed domain name. The Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsIn the view of the Panel, the Complainant’s submissions set out above give rise to a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has failed to file any Response in this proceeding and has not submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise. The Respondent’s use of the disputed domain name to impersonate the Complainant for the purpose of a fraudulent scheme, as discussed further below, cannot give rise to rights or legitimate interests. The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithThe Panel accepts the Complainant’s submissions and evidence, which the Respondent has not disputed, that the Respondent has used the disputed domain name for the purpose of a website which impersonates, and expressly claims to be operated by, the Complainant. The Panel finds in these circumstances that the Respondent was clearly aware of the Complainant’s trademark when it registered the disputed domain name and that it did so with the intention of taking unfair advantage of the Complainant’s goodwill attaching to that trademark.
The Panel finds further that the disputed domain name is inherently misleading, as inevitably suggesting to a significant number of Internet users that it is owned, operated or otherwise authorized by the Complainant. In the Panel’s view, the disputed domain name also constitutes a case of “typosquatting”, i.e., is intended to divert Internet users who mistype the Complainant’s name or website URL at “www.bangenergy.com” to the Respondent’s website.
The Complainant has provided further evidence that, having attracted Internet users to its website by the use of the inherently misleading disputed domain name, the Respondent then compounds that deceit by impersonating the Complainant’s own website and offering visitors the opportunity of paid participation in an “auto wrap” advertising campaign. Again, the Respondent has not denied the Complainant’s allegations that this offer is in fact a scam, whereby participants receive a fraudulent cheque, supposedly to cover the advertising costs, and are induced to send their own money to the scammer.
The Panel finds in the circumstances that the Respondent has used the disputed domain name for the purposes of a dishonest scheme, which in itself constitutes use of the disputed domain name in bad faith. The Panel finds further that, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or of a product or service on its website (paragraph 4(b)(iv) of the Policy).
The Panel therefore finds that the disputed domain name has been registered and is being used 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,
Steven A. Maier
Sole Panelist
Date: December 21, 2021