The Complainant is ManpowerGroup Inc., United States of America (“United States”), represented by IpHorgan Ltd., United States.
The Respondent is hongli wang, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 19, 2021. On November 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 23, 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 26, 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 December 1, 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 December 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 27, 2021.
The Center appointed John Swinson as the sole panelist in this matter on January 12, 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 an employment services agency based in the United States.
EXPERIS is the brand of one of the Complainant’s division that provides IT professional resourcing services.
The Complainant owns registered trademarks for EXPERIS in several jurisdictions, including the United States, Australia, China, and India. An example trademark registration owned by the Complainant is United States Registration No. 4,569,764 for EXPERIS that was registered on July 15, 2014.
At one time, the Complainant operated a blog called “EXPERIS SPARK” at the disputed domain name.
According to the WhoIs records, the disputed domain name was registered on December 14, 2012. However, the Complainant contends that the disputed domain name was originally registered by the Complainant.
At the time of the Complaint, the disputed domain name resolved to a pornography website. At the present time, the disputed domain name resolves to a webpage in Chinese that appears to state that the disputed domain name has expired. The Registrar’s records provided to the Center show that the disputed domain name expires on December 15, 2022.
5. Parties’ Contentions A. ComplainantIn summary, the Complainant makes the following submissions:
The disputed domain name incorporates EXPERIS, which is the Complainant’s trademark, registered worldwide.
The disputed domain name was once used by the Complainant for the Complainant’s “EXPERIS SPARK” blog. It is now being used to host pornographic content.
The Experis division of the Complainant is a world leader in workforce solutions. The EXPERIS trademark has been used for more than a decade. The Complainant owns numerous trademark registrations for EXPERIS in many jurisdictions as set out in section 4 above.
The disputed domain name has value because it was used by and has become associated with the Complainant.
The Respondent had no prior use of the disputed domain name in connection with the bona fide offering of goods or services.
The term “experisspark” has no meaning in any language.
The use by the Respondent of the disputed domain name for pornographic and/or gambling purposes is well-recognized to be illegitimate and per se bad faith use.
Directing a domain name to a pornographic website is violation of ICANN’s rules regulations as well as being trademark infringement.
The Respondent’s use of the disputed domain name tarnishes and infringes the Complainant’s EXPERIS trademark.
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 enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(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.
The onus of proving these elements is on the Complainant, even where the Respondent does not file a response.
Paragraph 15(a) of the Rules directs the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.
A. Identical or Confusingly SimilarThe first element of the Policy requires the Complainant to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
As stated above in section 4, the Complainant owns registered trademarks for EXPERIS.
The disputed domain name includes the Complainant’s trademark EXPERIS in its entirety, with the addition of the word “spark” at the end.
Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name. See, for example, Consumer Reports, Inc. v. Wu Yan, Common Results, Inc.,WIPO Case No. D2017-0371; Captain Fin Co. LLC v. Private Registration, NameBrightPrivacy.com / Adam Grunwerg,WIPO Case No. D2021-3279.
The Panel concludes that the disputed domain name is confusingly similar to the Complainant’s EXPERIS trademark.
The Complainant succeeds on the first element of the Policy.
B. Rights or Legitimate InterestsThe second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or
(iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name.
The onus of proving this requirement, like each element, falls on the Complainant.
Previous UDRP panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent.
Accordingly, it is sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden of production will shift to the respondent to rebut that prima facie case.
The Complainant asserts that the Respondent had no prior use of the disputed domain name in connection with the bona fide offering of goods or services. The Complainant also asserts that the term “experisspark” has no meaning in any language, and that the disputed domain name resolves to a pornography website. As a result, “the use of the site for pornographic and/or gambling purposes is well-recognized to be illegitimate and per se bad faith use”.
The Complainant did not explicitly address all the situations in paragraph 4(c) of the Policy. There is no evidence that the Complainant wrote to the Respondent to request the Respondent to cease use of the disputed domain name and to give the Respondent the opportunity to explain its use. On the other hand, there is no evidence before the Panel that the Respondent has been commonly known by the disputed domain name, has trademark rights in the disputed domain name, or made a legitimate noncommercial or fair use of the disputed domain name.
As discussed below, it appears that the Respondent registered the disputed domain name after it lapsed, and then used it to attract Internet traffic to promote pornography. In the circumstances of this case, that is not bona fide or fair use of the disputed domain name.
The Respondent’s past use of the disputed domain name to divert traffic to a pornography website does not, absent any further explanation, provide the Respondent with rights or legitimate interests in the disputed domain name. See:Tipico Co. Ltd. v. Super Privacy Service LTD c/o Dynadot,WIPO Case No. D2020-0446; G Y J Espa a Ediciones S.L. en C. v. Chesterton Holdings,WIPO Case No. D2007-1100; National Hockey League And Lemieux Group Lp v. Domain For Sale,WIPO Case No. D2001-1185; and contrast NP Factory Werbeagentur GmbH and Nastroje P. GmbH & Co. KG v. Demurrelt Enterprises Limited,WIPO Case No. D2007-1858.
The Complainant has established a prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that none of the circumstances listed in paragraph 4(c) of the Policy apply in the present circumstances.
For the reasons set forth above, the Panel concludes the Respondent has no rights or any legitimate interests in the disputed domain name.
The Complainant succeeds on the second element of the Policy in relation to the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the disputed domain name in bad faith.
The Complainant states that at one time the Complainant owned and used the disputed domain name for a blog operated by the Complainant. The Complainant provided screenshots from The Wayback Machine archive showing the blog as it existed in 2019, including use of “EXPERIS SPARK” on that blog and example blog posts, as evidence of such ownership and use.
The Complainant provided no information as to when this blog was discontinued, and when and why the disputed domain name ceased to be owned by the Complainant. However, from the evidence and circumstances of the case, it appears such change occurred several years after the registration of the Complainant’s trademarks and following several years of use hosting the blog website.
At one time after the Complainant ceased to own the disputed domain name, the disputed domain name resolved to a pornography website, which likely disrupted the Complainant’s business and potentially tarnished its trademark. This is indicia of bad faith. See, for example, Captain Fin Co. LLC v. Private Registration, NameBrightPrivacy.com / Adam Grunwerg,WIPO Case No. D2021-3279, a case in which the complainant accidently let the domain name lapse.
The Complainant’s trademark is relatively distinctive. It is highly likely that the Respondent knew of the Complainant or the Complainant’s trademark when he registered the disputed domain name.
The Panel finds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website under paragraph 4(b)(iv) of the Policy.
The Complainant succeeds on the third element of the Policy in relation to the disputed domain name.
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
John Swinson
Sole Panelist
Date: January 21, 2022