ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Sodexo v. Aditya Aman Case No. D2023-4522 1. The Parties The Complainant is Sodexo, France, represented by Areopage, France. The Respondent is Aditya Aman, India. 2. The Domain Name and Registrar The disputed domain name is registered with BigRock Solutions Pvt Ltd. (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 31, 2023. On October 31, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 1, 2023, 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 (Domain Admin, Privacy Protect, LLC (PrivacyProtect.org)), and contact information in the Complaint. The Center sent an email communication to the Complainant on November 15, 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 amended Complaint on November 17, 2023. The Center verified that the Complaint together with the amended 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 November 20, 2023. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 13, 2023. The Center appointed Nayiri Boghossian as the sole panelist in this matter on January 4, 2024. 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. page 2 4. Factual Background The Complainant was founded in 1966 and is specialized in food services and facilities management. The Complainant owns many trademark registrations for SODEXO worldwide such as the following: 1. International Trademark Registration No. 1240316, registered on October 23, 2014; 2. European Union ("EU") Trade mark Registration No. 008346462, registered on February 1, 2010; and 3. EU Trade mark Registration No. 006104657, registered on June 27, 2008. The Complainant also has many domain names which contain the trademark SODEXO such as , , and . The disputed domain name was registered on October 3, 2023, and resolves to an inactive website. 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 disputed domain name. Notably, the Complainant contends that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights. The disputed domain name is composed of the Complainant's trademark adding to it the letter "p", which is next to the letter "o" on the keyboard. This is a case of typosquatting that creates confusion. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the disputed domain name. The Respondent is not licensed by the Complainant to use its trademark nor is it affiliated with the Complainant. The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent must have had knowledge of the Complainant's trademark as it is well-known and fanciful. A passive holding of a domain name does not prevent a finding of bad faith in certain circumstances and such circumstances are met in this case. There can also be a threat of abusive use. 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 trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. page 3 Based on the available record, the Panel finds the Complainant has established unregistered trademark or service mark rights for the purposes of the Policy. WIPO Overview 3.0, section 1.3. The Panel finds the entirety of the mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. The Panel finds the mark is recognizable within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. The disputed domain name is a reproduction of the Complainant's trademark adding to it the letter "p", adjacent to the letter "o" on the QWERTY keyboard and also the last letter of the Complainant's trademark, representing typosquatting and thus not preventing a finding of confusing similarity. WIPO Overview 3.0, section 1.9. Based on the available record, the Panel finds the first element of the Policy has been established. 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 recognized 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 disputed 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 disputed domain name such as those enumerated in the Policy or otherwise. Rather, there is no evidence of the use of the disputed domain name whatsoever, it having resolved to an inactive page since its registration apparently. Accordingly, such non-use clearly does not represent any bona fide offering nor does it confer rights or legitimate interests upon the Respondent given that the disputed domain name is inherently misleading as compared the Complainant's trademark. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. In the present case, the Panel notes that the Respondent must have been aware of the Complainant's trademark as the disputed domain name was registered more than 15 years after the registration of the Complainant's trademark and the Complainant's trademark is fanciful and has no dictionary meaning. Also, this is a case of typosquatting, which may be an indication of bad faith. The Respondent has added one keyboard-adjacent letter to the Complainant's trademark in order to confuse Internet users and to benefit from typos. page 4 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 found that the non-use of a domain name (including a blank page) would not prevent a finding of bad faith under the doctrine of passive holding. Having reviewed the available record, the Panel finds the non-use of the disputed domain name 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. Having reviewed the available record, the Panel notes the distinctiveness of the Complainant's trademark, and the composition of the disputed domain name, and finds that in the circumstances of this case the passive holding of the disputed domain name does not prevent a finding of bad faith under the Policy. Moreover, the Respondent appears to have engaged in the use of a privacy service, masking its details on the publicly-available WhoIs, which further supports an inference of bad faith, particularly when coupled together with the seemingly false information disclosed for the Respondent to which the mail courier was unable to deliver the Center's written communication. Based on the available record, the Panel finds that the Complainant has established the third element of the Policy. 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 disputed domain name be transferred to the Complainant. /Nayiri Boghossian/ Nayiri Boghossian Sole Panelist Date: January 16, 2024
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