The Complainant is Cylance Inc., United States of America (“United States”), represented by Davis Wright Tremaine LLP, United States.
The Respondent is Rashmika Molia, ARS, India.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2021. On December 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 16, 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.
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 paragraph 5, the due date for Response was January 19, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 21, 2022.
The Center appointed Gregor Vos as the sole panelist in this matter on February 4, 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 a software company founded in 2012 and based in Irvine, California, United States that develops antivirus software and computer software applying artificial intelligence.
The Complainant is the owner of inter alia the following United States trademark registrations (hereinafter referred to as the “Trademark(s)”):
- United States registration No. 4589223 for CYLANCE registered on August 19, 2014;
- United States registration No. 5171653 for registered on March 28, 2017;
- United States registration No. 5836041 for CYLANCEHYBRID registered on August 13, 2019; and
- United States registration No. 5836042 for CYLANCEON-PREM registered on August 13, 2019.
Further, it is undisputed that the Complainant is the holder of inter alia the domain name
The Domain Name was registered on October 27, 2021, and currently resolves to a website that offers support for the software of the Complainant and on which the Complainant’s Trademarks are depicted.
5. Parties’ Contentions A. ComplainantWith the Complaint, the Complainant seeks that the Domain Name is transferred to the Complainant. The Complainant is based on the following factual and legal grounds: the Domain Name is identical or confusingly similar to the Trademarks of the Complainant, the Respondent has no rights or legitimate interests in the Domain Name, and the Domain Name has been registered and is being used in bad faith.
Firstly, according to the Complainant, the Domain Name is identical or confusingly similar to its Trademarks. The Domain Name fully incorporates the Complainant’s Trademarks with the addition of the generic term “supportnumber”. Therefore, it is apparent that the Respondent has attempted, with the Domain Name, to create the appearance of an association with the Complainant.
Secondly, according to the Complainant, the Respondent has no rights or legitimate interests in the Domain Name. The Complainant claims that there exists no relationship between the Complainant and the Respondent and the Respondent has never received any license, permission, or authorization from the Complainant to register or use the Domain Name. Also, the Respondent is not commonly known by the Domain Name and is not making a legitimate noncommercial or fair use of the Complainant’s Trademarks on the website linked to the Domain Name. The Respondent cannot demonstrate any legitimate interest in the Domain Name.
Finally, according to the Complainant, the Respondent has registered and is using the Domain Name in bad faith. By using a domain name which is confusingly similar to a well-known, registered trademark it is likely that Internet users hold the proprietor of the trademark responsible for the website the Domain Name is linked to or, alternatively, assume that some kind of legal or economic affiliation exists between the operator of the website and the proprietor of the trademark. Since the Respondent was well aware of the Complainant’s Trademarks at the time of registration of the Domain Name and considering the confusing similarity of the Domain Name with the Complainant’s Trademarks, the Respondent, by using the Domain Name, intends to cause confusion with the Complainant’s Trademark and to take advantage of such confusion as to the source of its website or its affiliation in order to attract, for commercial gain, Internet users to its website. Based on the undisputed submission and evidence provided by the Complainant, the Respondent attempts to trick consumers into downloading antivirus software with the Domain Name, which could possibly infect visitors’ computers with malware. Such use is not a bona fide offering of goods or services, nor a legitimate, noncommercial or fair use of the Doman Name. In addition, the website connected with the Domain Name does not disclose that there has been any business relationship between the Complainant and the Respondent and that the Complainant is holder of the Trademarks in particular.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn view of the lack of a response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(f), 14(a), and 15(a) of the Rules the Panel is directed to decide this administrative proceeding on the basis of the Complainant’s undisputed factual presentations.
For the Complainant to succeed, it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
i. the Domain Name is identical of confusingly similar to a trademark or a service mark in which the Complainant has rights;
ii. the Respondent has no rights or legitimate interests in respect of the Domain Name; and
iii. the Domain Name has been registered and is being used in bad faith.
Only if all three elements have been fulfilled, the Panel is able to grant the remedies requested by the Complainant. The Panel will deal with each of the requirements in turn.
A. Identical of Confusingly SimilarParagraph 4(a)(i) of the Policy requires the Complainant to show that the Domain Name is (i) identical or confusingly similar to a trademark or service mark, (ii) in which the Complainant has rights.
With respect to having rights pursuant to paragraph 4(a)(i) of the Policy, it is noted that the Complainant is registered as the owner of the Trademarks. Consequently, the Panel finds that the Complainant has proven that it has rights in the Trademarks.
With regard to the assessment of identity or confusing similarity of the Domain Name with the Trademarks, it is generally accepted that this test involves a reasoned but relatively straightforward comparison between the Complainant’s Trademarks and the Domain Name (see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered confusingly similar to that mark (see section 1.7of the WIPO Overview 3.0).
In the present case, the Trademark CYLANCE to which the Complainant has trademark rights is incorporated in its entirety in the Domain Name and is placed at the beginning of the Domain Name. The addition of the generic Top-Level Domain (“gTLD”) “.com” and the term “supportnumber”, does not prevent a finding of confusing similarity with the Trademarks (see sections 1.8 and 1.11 of the WIPO Overview 3.0; Yahoo! Inc. v. Andy Perlaza,WIPO Case No. D2017-0869). Consequently, the Panel finds that the requirement under paragraph 4(a)(i) of the Policy has been satisfied.
B. Rights or legitimate InterestsThe second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the Domain Name. The onus of proving this requirement, like each element, falls on the Complainant. Given the difficulty in proving a negative, however, it is usually sufficient for a complainant to make out a prima facie case that a respondent lacks rights or legitimate interests. If a complainant does establish a prima facie case, the burden of production shifts to the respondent (see e.g. WIPO Overview 3.0, section 2.1; Sanofi v. Cimpress Schweiz GmbH,WIPO Case No. D2017-0522).
Paragraph 4(c) of the Policy lists three non-limitative examples of instances in which a respondent may establish rights or legitimate interests in the disputed domain name.
The Complainant has substantiated that none of these circumstances apply in this case. By defaulting, the Respondent has failed to address the prima facie case thus established by the Complainant. Furthermore, based on the record before it, the Panel does not see that any of the circumstances of paragraph 4(c) of the Policy is present. In particular, since the website linked to the Domain Name does not disclose any information on the (nonexistent) relationship between the Respondent and the Complainant, visitors are likely to gain the overall impression that the website is connected to the Complainant, which cannot constitute fair use.
Accordingly, the Panel finds that the Respondent has no right or legitimate interests in respect of the Domain Name. Paragraph 4(a)(ii) is thereby fulfilled.
C. Registered and Used in Bad FaithUnder paragraph 4(a)(iii) of the Policy, a complainant must show that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four non-limitative circumstances which may be considered as evidence of registration and use in bad faith of a domain name.
In the present case, the Trademarks are registered by the Complainant and have been used for many years. The Complainant’s rights to the Trademarks predate the registration date of the Domain Name. In light of the fact that the Domain Name incorporates the Trademark CYCLANCE in its entirety, as well as the fact that the Domain Name’s content features the remaining Trademarks, the Panel agrees with the Complainant that it is not conceivable that the Respondent chose the Domain Name without knowledge of the Complainant’s activities and its Trademarks under which the Complainant is doing business.
Further, in light of the lack of any rights to or legitimate interest in the Domain Name by the Respondent and in the absence of any conceivable good faith use of the Domain Name, the Panel finds from the present circumstances that 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 Trademarks as to the source, sponsorship, affiliation or endorsement. This is reinforced by the fact that the Domain Name is confusingly similar to the Complainant’s Trademarks and that it is used in connection with a website that appears to have been deliberately designed to misrepresent itself as a website of, or related to, the Complainant (see Yahoo! Inc. v. Andy Perlaza,WIPO Case No. D2017-0869).
Accordingly, the Panel finds that the Domain Name has been registered and is being used in bad faith and that the third element of paragraph 4 (a)(iii) of the Policy is fulfilled.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Gregor Vos
Sole Panelist
Date: February 18, 2022