ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Addition v. Mallard OUNCH Case No. D2023-4293 1. The Parties The Complainant is Addition, United States of America ("United States"), represented by ZeroFox, United States. The Respondent is Mallard OUNCH, Canada. 2. The Domain Name and Registrar The disputed domain name
(the "Domain Name") is registered with NameSilo, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 16, 2023. On October 17, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 17, 2023, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent (Information Unavailable) and contact information in the Complaint. The Center sent an email communication to the Complainant on October 18 and 24, 2023, 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 October 24, 2023. 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 October 25, 2023. In accordance with the Rules, paragraph 5, the due date for Response was November 14, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 20, 2023. page 2 The Center appointed Jeremy Speres as the sole panelist in this matter on November 24, 2023. 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 Background The Complainant is an American venture capital firm based in New York City, investing in early and growthstage technology companies. The firm was founded in 2020 and manages over USD 7 billion in capital worldwide under its ADDITION mark. The Complainant owns numerous trade mark registrations for its ADDITION mark, including United States Trade Mark Registration No. 6240606 ADDITION in class 36, with a registration date of January 5, 2021. The Domain Name was registered on August 9, 2023, and does not resolve to any website. The Complainant's evidence establishes that the Domain Name has been used for email-based fraud, impersonating a staff member of the Complainant for purposes of soliciting undue payments. 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. Notably, the Complainant contends that the Domain Name was registered and has been used in bad faith given that it has been used for email-based fraud, impersonating the Complainant. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trade mark and the Domain Name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7. The Panel finds the Complainant has shown rights in respect of a trade mark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The Panel finds the mark is recognisable within the Domain Name as an obvious misspelling (namely an extra "t"). Accordingly, the Domain Name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.9. The Panel finds the first element of the Policy has been established. page 3 B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognised that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult 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 (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the Domain Name such as those enumerated in the Policy or otherwise. Panels have held that the use of a domain name for illegal activity, here, email-based fraud, can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. The Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent's registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1. Panels have held that the use of a domain name for illegal activity, here, email-based fraud, constitutes bad faith. WIPO Overview 3.0, section 3.4. Having reviewed the record, the Panel finds the Respondent's registration and use of the Domain Name constitutes bad faith under the Policy. The composition of the Domain Name, being an obvious misspelling of the Complainant's mark, supports this conclusion. Panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. Having reviewed the available record, the Panel finds the fact that the Domain Name does not resolve to a website does not prevent a finding of bad faith in the circumstances of this proceeding. Although panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant's mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, and (iii) the respondent's concealing its identity or use of false contact details (noted to be in breach of its registration agreement). WIPO Overview 3.0, section 3.3. In light of the clear evidence of fraudulent use and the composition of the Domain Name, the Panel finds that in the circumstances of this case where the Domain Name does not resolve to an active website, does not prevent a finding of bad faith under the Policy. The Panel moreover draws adverse inferences from the Respondent's failure to take part in the present proceeding where an explanation is certainly called for. WIPO Overview 3.0 at section 4.3. The Panel finds that the Complainant has established the third element of the Policy. page 4 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant. /Jeremy Speres/ Jeremy Speres Sole Panelist Date: December 8, 2023
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