The Complainant is Carrier Corporation, United States of America (“United States”), represented by CSC Digital Brand Services Group AB, Sweden.
The Respondent is DNS Admin, Domain Privacy LTD, 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 November 4, 2021. On November 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 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 for the disputed domain name.
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 December 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 29, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2022.
The Center appointed Evan D. Brown as the sole panelist in this matter on January 11, 2022. 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 in the business of providing heating, ventilating, and air conditioning (“HVAC”), refrigeration, fire, security, and building automation technologies worldwide. It owns the trademark CARRIER, which it has registered in a number of countries, including the United States (e.g., Reg. No. 1,712,227, registered on September 1, 1992).
According to the WhoIs records, the disputed domain name was created on July 18, 2001. The Respondent has used the disputed domain name to display pay-per-click (“PPC”) links. One of the links redirected internet users to the Complainant’s website. Also, the Complainant asserts that mail exchange (“MX”) records have been established for the disputed domain name, indicating that the disputed domain name may be used to send email messages, perhaps of a fraudulent nature.
The Respondent did not reply to cease and desist letters that a representative of the Complainant sent to the Respondent, demanding transfer of the disputed domain name, on September 9, September 21, 2021, and October 5, 2021.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsTo succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, (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. The Panel finds that all three of these elements have been met in this case.
A. Identical or Confusingly SimilarThis element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain name is identical or confusingly similar to that mark. This element under the Policy functions primarily as a standing requirement. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the CARRIER mark by providing evidence of its trademark registrations.
The disputed domain name incorporates the CARRIER mark in its entirety. This is sufficient for showing confusing similarity under the Policy. The addition of the dictionary word “corporation” does not eliminate the confusing similarity. Additionally, it is standard practice when comparing a disputed domain name to a complainant’s trademarks, to not take the extension into account. See WIPO Overview 3.0 at 1.11.1 (“The applicable generic Top-Level Domain (“gTLD”) in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.”).
The Panel finds that the Complainant has established this first element under the Policy.
B. Rights or Legitimate InterestsThe Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of production of demonstrating rights or legitimate interests shifts to the Respondent (with the burden of proof always remaining with the Complainant).
On this point, the Complainant asserts, among other things, that (1) the Respondent is not sponsored by or affiliated with the Complainant in any way, (2) the Complainant has not given the Respondent permission to use the Complainant’s trademarks in any manner, including in a domain name, (3) the Respondent is not commonly known by the disputed domain name, (4) the Respondent has not made a bona fide offering of goods or services that would give rise to rights or legitimate interests in the disputed domain name using the disputed domain name to redirect Internet users to a website featuring links to third-party websites, all of which directly referenced the Complainant and its business, and (5) the Respondent has established MX records associated with the disputed domain name, which implies that the disputed domain name could be used as part of an email phishing scheme.
The Panel finds that the Complainant has made the required prima facie showing. The Respondent has not presented evidence to overcome this prima facie showing. And nothing in the record otherwise tilts the balance in the Respondent’s favor. Accordingly, the Panel finds that the Complainant has established this second element under the Policy.
C. Registered and Used in Bad FaithThe Policy requires a complainant to establish that the disputed domain name was registered and is being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith registration and use. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt 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 a product or service on [the respondent’s] website or location”.
Because the CARRIER mark is so well known, and was well known before the disputed domain name was registered, it is implausible to believe that the Respondent was not aware of it when it registered the disputed domain name. In the circumstances of this case, the mere registration of a domain name that is confusingly similar to a well-known trademark by an unaffiliated entity can by itself create a presumption of bad faith registration of the disputed domain name. Government Employees Insurance Company v. Joel Rosenzweig, RegC,WIPO Case No. D2021-1221.
Bad faith use is clear in this case from the Respondent’s activities of using the disputed domain name to establish a website displaying unauthorized pay-per-click links. ESMOD v. Domains By Proxy, LLC, Registration Private / Carolina Rodrigues, Fundacion Comercio Electronico,WIPO Case No. D2021-2865. Moreover, if the Respondent is using the disputed domain name to send fraudulent emails – which the MX records suggest is at least a possibility – then bad faith use is further obvious. Id.
The lack of response by the Respondent to the cease-and-desist letters sent by the Complainant supports a finding of bad faith. Past UDRP panels have held that failure to respond to a cease-and-desist letter may be considered a factor in finding bad faith registration and use of a domain name. Id.; Encyclopaedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party,WIPO Case No. D2000-0330.
For these reasons, the Panel finds that the Complainant has established this third element under 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
Evan D. Brown
Sole Panelist
Date: January 25, 2022