ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Top Vending (Proprietary) Limited v. Hezborn Keana Case No. D2023-4705 1. The Parties Complainant is Top Vending (Proprietary) Limited, South Africa, represented by Adams & Adams Attorneys, South Africa. Respondent is Hezborn Keana, Kenya. 2. The Domain Name and Registrar The disputed domain name (the "Domain Name") is registered with Dynadot Inc (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 13, 2023. On November 13, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 13, 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 (Super Privacy Service LTD c/o Dynadot Inc) and contact information in the Complaint. The Center sent an email communication to Complainant on November 20, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on November 21, 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 Respondent of the Complaint, and the proceedings commenced on November 30, 2023. In accordance with the Rules, paragraph 5, the due date for Response was December 20, 2023. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 21, 2023. page 2 The Center appointed Marina Perraki as the sole panelist in this matter on December 28, 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 Established in 1991, Complainant is amongst largest one-stop B&I refreshment specialists in sub-Saharan Africa. It is the exclusive distributor for leading international brands in coffee, refreshments, water coolers, payment solutions and ice machines. Complainant owns the South African trademark registration no. 1997/02635, TOP VENDING (figurative and word), filed on February 21, 1997, and registered on March 2, 2000, for services in international class 35. Complainant also owns the domain name , registered on June 27, 1999, which it uses in relation to websites on which it promotes its goods and services. The Domain Name was registered on May 1, 2023, and leads to a website impersonating Complainant and mimicking Complainant's own website prominently displaying Complainant's trademarks and copying Complainant's website content, look and feel, official partners list and blog posts ("the Website"). Complainant sent a cease-and-desist letter to Respondent on September 15, 2023, to which Respondent did not reply. 5. Parties' Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. B. Respondent Respondent did not reply to Complainant's contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered or is being used in bad faith. 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 page 3 Complainant's trademark and the 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 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. The Panel finds the entirety of the mark is reproduced within the Domain Name. Accordingly, the Domain Name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. Although the addition of other terms here, "trading" may bear on assessment of the second and third elements, the Panel finds the addition of such term does not prevent a finding of confusing similarity between the Domain Name and the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8. The generic Top-Level Domain ("gTLD") ".com" is disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons (Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275; Hay & Robertson International Licensing AG v. C. J. Lovik, WIPO Case No. D2002-0122). 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 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 Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. Respondent has not rebutted 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. On the contrary, as Complainant demonstrated, the Domain Name resolves to the Website, which suggests falsely that it that of Complainant. Per Complaint, Respondent is not an affiliated entity or an authorised partner of Complainant and no agreement, expressor otherwise, exists allowing the use of Complainant's trademarks on the Website and the use of the Domain Name by Respondent. Panels have held that the use of a domain name for illegal activity here, claimed impersonation/passing off, or other types of fraud can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. The above, along with the fact that the Domain Name was registered with a privacy shield service at the time of filing of the Complaint, speaks against any rights or legitimate interests held by Respondent (Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records, WIPO Case No. D2017-2533). page 4 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. 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, claimed impersonation/passing off, or other types of fraud constitutes bad faith. WIPO Overview 3.0, section 3.4. Having reviewed the record, the Panel finds Respondent's registration and use of the Domain Name constitutes bad faith under the Policy. Because the TOP VENDING mark had been registered decades ago and used by Complainant, when the Domain Name was registered and coupled with the content of the Website, the Panel finds it more likely than not that Respondent had Complainant's mark in mind when registering the Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc., WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226). As regards bad faith use of the Domain Name, Complainant has demonstrated that the Domain Name is used to resolve to the Website, which impersonates Complainant and mimics the website of Complainant, prominently displaying Complainant's registered trademarks and copying Complainant's website content, thereby giving the false impression that it is operated by Complainant. The Domain Name is therefore used to intentionally create a likelihood of confusion with Complainant's trademark and business as to the source, sponsorship, affiliation, or endorsement of the website it resolves to. This can be used in support of bad faith registration and use (Booking.com BV v. Chen Guo Long, WIPO Case No. D2017-0311; Ebel International Limited v. Alan Brashear, WIPO Case No. D2017-0001; Walgreen Co. v. Muhammad Azeem / Wang Zheng, Nicenic International Group Co., Limited, WIPO Case No. D2016-1607; Oculus VR, LLC v. Sean Lin, WIPO Case No. DCO2016-0034; and WIPO Overview 3.0, section 3.1.4). Last, the Panel considers the apparent concealment of the Domain Name holder's identity through use of a privacy shield at the time of filing the Complaint, to be further indicative of bad faith (BHP Billiton Innovation Pty Ltd v. Domains By Proxy LLC / Douglass Johnson, WIPO Case No. D2016-0364). Based on the available record, the Panel finds that 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 Domain Name, , be transferred to Complainant. /Marina Perraki/ Marina Perraki Sole Panelist Date: January 11, 2024
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