The Complainant is ACO Severin Ahlmann GmbH & Co. KG, Germany, represented by Bardehle Pagenberg Partnerschaft mbB, Germany.
The Respondent is Whois Privacy Protection Foundation, the Netherlands / John Smith, 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 December 9, 2021. On December 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 10, 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 December 10, 2022, 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 13, 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 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 10, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 11, 2022.
The Center appointed Assen Alexiev as the sole panelist in this matter on February 2, 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 was founded in 1946. It is a German manufacturer of construction elements for civil engineering, such as systems and components for the drainage of buildings and properties. The Complainant is also active in the fields of sports facility construction, amphibian protection systems, iron casting and special stainless-steel construction. The Complainant and its subsidiaries operate under the designation “ACO Group”. The ACO Group is represented in 40 countries in four continents, has 30 production facilities in fifteen countries, and employs 5,000 people in more than 40 countries worldwide as of February 2019.
The Complainant is the owner of the following trademark registrations for the sign “ACO” (the “ACO trademark”):
− the European Union trademark ACO with registration No. 000155374, registered on September 5, 2003, for goods in International Classes 6, 7, 19, 20, and 21;
− the European Union trademark ACO with registration No. 004264941, registered on March 1, 2007, for goods in International Classes 6, 7, 11, 17, 19, and 21; and
− the International trademark ACO with registration No. 878230, registered on February 2, 2005, for goods in International Classes 6, 7, 11, 17, 19, and 21.
The Complainant is the owner of the domain name
The disputed domain name was registered on June 4, 2021. It is currently inactive. At the time of filing of the Complaint, the disputed domain name resolved to a website offering a cryptocurrency.
5. Parties’ Contentions A. ComplainantThe Complainant states that the disputed domain name is confusingly similar to its ACO trademark, because it consists only of this trademark combined with the “.army” new Top-Level Domain.
The Complainant maintains that the Respondent has no rights or legitimate interests in respect of the disputed domain name, as it has no registered trademarks, trade names, or personal names corresponding to the disputed domain name, and the Complainant has not authorized the Respondent to use the ACO trademark. The Complainant states that the actual use of the disputed domain name does not confer any rights or legitimate interests in it. The website at the disputed domain name does not make clear the purposes for which the Respondent uses it, and it appears to have fake pro forma content without real substance. The website states that “Anti Covid Amry (ACO)” is a community-focused, decentralized cryptocurrency with instant rewards for holders. Members of the Acovid ecosystem earn interest from network activity, all while benefitting through our charitable partnerships.” There is however no information as to how such “cryptocurrency system”, if it exists at all, actually works or how such currency can be bought, exchanged or traded. The Complainant maintains that this seems to be a fake company or business, as it apparently consists of only two persons, calling themselves “ACO Man” and “ACOVID Dev”. The Complainant also points out that the Respondent describes itself as “Anti Covid Army (ACO)”, so the proper acronym in that case should be “ACA”, and there is no reason to use “ACO” as an abbreviation for “Anti-Covid”.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. According to it, when registering the disputed domain name, the Respondent was aware of the prior rights of the Complainant in the ACO trademark, because the Complainant has operated its business since 1946 and the ACO trademark was registered long before the registration of the disputed domain name.
The Complainant maintains that the Respondent uses the disputed domain name for a business, which appears to be fake and seems to attract Internet users with an aim to have them invest in cryptocurrency or join other platforms on which the Respondent is operating, such as the Telegram channel promoted under the dispute domain name. According to the Complainant, the unclear and ambiguous information on risky investments such as cryptocurrencies can only lead to the conclusion that the person or entity operating the disputed domain name uses it for malicious purposes and misleads Internet users as to non-existent relationship with the Complainant and might get the false impression that this is actually a project pursued by the Complainant and, trusting the Complainant’s reputation, make contributions. The Complainant adds that the disputed domain name is used for email communication, which is evidenced by the fact that mail exchanger records (MX records) have been set up for the disputed domain name, so the Respondent might be using the disputed domain name for spamming or phishing attacks.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsPursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […].”
A. Identical or Confusingly SimilarThe Complainant has submitted evidence that it is the owner of the ACO trademark and has thus established its rights in this trademark for the purposes of the present proceeding.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel sees no reason not to follow the same approach here, so it will disregard the “.army” gTLD of the disputed domain name.
The relevant element of the disputed domain name is therefore “aco”, which is identical to the ACO trademark.
Therefore, the Panel finds that the disputed domain name is identical to the ACO trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, because it is not the owner of any trademark registration, has no connection to the Complainant and has received no authorization by the Complainant to use the ACO trademark. The Complainant points out that the Respondent is not using the disputed domain name for a legitimate purpose, because it resolves to an apparently fake website that offers what appears to be a non-existent cryptocurrency. The Complainant has thus established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has not submitted a Response in this proceeding and has not disputed the contentions of the Complainant or provided any specific arguments in support of the existence of any rights or legitimate interests in the disputed domain name.
As discussed in section 6.A above, the disputed domain name is identical to the ACO trademark. The evidence in the case file shows that it has been used in connection with a website offering a cryptocurrency. This website states that “Anti Covid Amry (ACO)” is a community-focused, decentralized cryptocurrency with instant rewards for holders. Members of the Acovid ecosystem earn interest from network activity, all while benefitting through our charitable partnerships.” This text refers first to “Anti Covid Army (ACO)”, and then to “Acovid ecosystem”, which is not consistent, and as noted by the Complainant, the proper acronym for Anti Covid Army” would be ACA, and not ACO. The website does not specify how this cryptocurrency functions, and the Respondent has submitted no supporting evidence that the cryptocurrency actually exists and is traded.
In view of the above and in the absence of any denial by the Respondent or evidence to the contrary, the Panel concludes that it is more likely than not that the cryptocurrency referred to on the Respondent’s website does not actually exist, and that the Respondent has targeted the ACO trademark with the registration and use of the disputed domain name in an attempt to improperly capitalize on the reputation and goodwill associated with this trademark by confusing and attracting Internet users to the website at the disputed domain name as to the endorsement by the Complainant of the cryptocurrency described there. The Panel is not satisfied that this conduct is legitimate and gives rise to rights or legitimate interests of the Respondent in the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
As discussed in the previous sections, the disputed domain name incorporates the ACO trademark and is identical to it, and the Respondent has not provided any explanation of its registration and use and no supporting evidence about the actual existence and functioning of the cryptocurrency described on the website to which the disputed domain name resolves. The Panel is not persuaded that the reference to ACO as an acronym for “Anti Covid Army” makes sense, and as noted by the Complainant, the content of the Respondent’s website has the appearance of being fabricated. Moreover, the Panel notes that the Complainant is the owner of the domain name
In view of the above, the Panel concludes that it is more likely that the Respondent must have been aware of the goodwill of the Complainant’s ACO trademark when it registered the disputed domain name, and that the Respondent registered and used it in an intentional attempt to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s ACO trademark as to the endorsement by the Complainant of the cryptocurrency offered on the website at the disputed domain name. The fact that the disputed domain name is currently inactive does not prevent a finding of bad faith.
In view of all the above, the Panel 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
Assen Alexiev
Sole Panelist
Date: February 16, 2022