ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Maxon Computer GmbH v. Xander Gatsby Case No. D2024-2572 1. The Parties Complainant is Maxon Computer GmbH, Germany, represented by DLA Piper LLP, United States of America (“United States”). Respondent is Xander Gatsby, United States. 2. The Domain Name and Registrar The disputed domain name is which is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2024. On June 25, 2024, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 25, 2024, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from those in the Complaint (Withheld for Privacy ehf). The Center sent an email communication to Complainant on June 28, 2024, 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 July 2, 2024. 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 July 11, 2024. In accordance with the Rules, paragraph 5, the due date for Response was July 31, 2024. On July 26, 2024, the Center received by email an unsolicited supplemental filing from Complainant. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 8, 2024.
page 2 The Center appointed Gerardo Saavedra as the sole panelist in this matter on August 14, 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. Preliminary Issue: Proper Respondent Pursuant to paragraph 1 of the Rules “Respondent means the holder of a domain-name registration against which a complaint is initiated”. The original Complaint named “Withheld for Privacy ehf” as Respondent, as it appeared as registrant in the available WhoIs record. At the Center’s request, the Registrar sent its verification response disclosing Xander Gatsby as the registrant of the disputed domain name, and thus on July 2, 2024, Complainant filed an amendment to the Complaint adding Xander Gatsby as Respondent. Since the real underlying registrant has been promptly disclosed, the Panel decides to only have Xander Gatsby as the proper Respondent. Preliminary Issue: Supplemental Filing As noted above, on July 26, 2024, that is, 15 days after the Center had notified Respondent of the Complaint, the Center received from Complainant an unsolicited supplemental filing consisting of an amended complaint. The Rules do not provide for supplemental filings. Paragraph 10 of the Rules enjoins the panel to conduct the proceeding “with due expedition” and empowers the panel to “determine the admissibility, relevance, materiality and weight of the evidence”. In this case, the Panel has decided not to take into account such supplemental filing in order not to delay this administrative proceeding. In any event, if the Panel had taken into consideration such supplemental filing, that would not have changed the outcome of this proceeding. 4. Factual Background Complainant is a German corporation that makes software for 2D/3D design, 3D modeling, motion graphics, animation, filmmaking, and digital sculpting, among other uses. Complainant has rights over the MAXON mark for which it holds, among others, European Union registration No. 004639191, registered on April 12, 2007, in classes 9, 16 and 42; and United States registration No. 6857228, registered on September 27, 2022, in class 9. Complainant also has rights over the MAXON ONE mark for which it holds, among others, European Union registration No. 1606135, registered on April 7, 2021, in classes 9 and 42; and United States registration No. 6857230, registered on September 27, 2022, in class 9. The disputed domain name was registered on May 15, 2024. Before the Complaint was filed the disputed domain name was used as an email address and did not resolve to an active website. 5. Parties’ Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy and requests that the disputed domain name be transferred to Complainant. Complainant’s assertions may be summarized as follows. Complainant operates internationally and has developed a strong reputation for its MAXON mark. Complainant owns trademark registrations for MAXON, MAXON ONE and MAXON ONE and design, and is the registrant of the domain name which it uses to host its global website.
page 3 The disputed domain name is nearly identical to Complainant’s MAXON mark. The disputed domain name fully incorporates the MAXON mark with the number “0” in lieu of the letter “O”. Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent has no relationship with Complainant and no authorization from Complainant to use its MAXON marks, to handle Complainant’s finances, to appropriate the disputed domain name, or to otherwise associate itself with Complainant. To Complainant’s knowledge, Respondent is not commonly known by the disputed domain name. Respondent registered the disputed domain name with direct reference to Complainant and is using it to mislead others into believing that they have received legitimate communications from Complainant in order to perpetuate fraud. On the day following registration of the disputed domain name, Respondent, purporting to be Complainant, sent an email to a Complainant’s reseller, which included in the “cc” field an email address with the “@max0n.net” extension. That communication was not a legitimate email from Complainant, but rather was a phishing email used in perpetration of a man in the middle attack, whereby the fraudulent actor intercepted and altered communications sent from an authentic Complainant email address ([…]@maxon.net) to the email addresses of individuals employed by Complainant’s distributor in China. Said fraudulent email communication purported to inform the reseller that Complainant had changed its bank account and provided new bank account details; attached to that email were two forged letters, one purporting to be from Complainant (using the name of a legitimate employee) and one purporting to be from the bank, both purportedly authenticating the change in bank information.1 Respondent’s registration and use of the disputed domain name constitutes bad faith under the Policy. Respondent intentionally selected the disputed domain name, nearly identical to Complainant’s mark, where the number “0” can easily be an uncaught typo for the letter “O”, to enable it to conduct its man in the middle attack and to mislead recipients of its phishing emails. Respondent is using Complainant’s mark and the disputed domain name for the purposes of carrying out fraud. Complainant became aware of Respondent after its reseller received a phishing email attempting to re-direct payments intended for Complainant to Respondent by providing false updated banking information and asking recipients to direct payments to said false bank account. Respondent registered the disputed domain name just one day before its phishing attempt. As part of that phishing attempt, Respondent also utilized the disputed domain name as email address, included in the phishing email. These facts all support a finding of bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. The lack of response from Respondent does not automatically result in a favorable decision for Complainant (see section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The burden for Complainant, under paragraph 4(a) of the Policy, is to show: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) that 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. 1Annex 6 of the Complaint contains a copy of said email, sent on May 16, 2024, and of such two letters referred to by Complainant.
page 4 A. Identical or Confusingly Similar 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 disputed domain name almost identically reproduces the MAXON mark. The Panel finds the mark is recognizable within the disputed domain name and that the replacement of the “o” letter with the “0” number in the disputed domain name does not avoid a finding of confusing similarity between them for the purposes of the Policy (WIPO Overview 3.0, sections 1.7, 1.9 and 1.11.1). The Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests 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). Paragraph 4(c) of the Policy provides a list of circumstances in which Respondent may demonstrate rights or legitimate interests in the disputed domain name. There is no evidence in the case file of any of those, or of any other circumstances giving rise to a possible right to or legitimate interest in the disputed domain name by Respondent, but rather the opposite may be validly inferred. The nature of the disputed domain name, confusingly similar to Complainant’s mark, represents a serious risk that Internet users will not notice the subtle misspelling as it may mistakenly be seen as effectively impersonating or suggesting some connection to Complainant. In the Panel’s view, the typosquatting nature of the disputed domain name, which almost identically reflects Complainant’s mark, cannot confer rights or legitimate interests upon Respondent.2 Further, the evidence in the file shows that the disputed domain name was used as an email address as it was included in the “cc” field in a phishing email under a man in the middle attack on Complainant and one of its resellers. Such use demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name (WIPO Overview 3.0, section 2.13.13). The Panel finds Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the disputed 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 disputed domain name such as those enumerated in the Policy or otherwise. Based on the available record, the Panel finds the second element of the Policy has been established. 2See Belmont Village, L.P. v. Name Redacted, WIPO Case No. D2022-4895: “typosquatting is evidence of a lack of rights or legitimate interests in the Disputed Domain Name”. 3 See also Olivetti S.p.A v. mez inc, WIPO Case No. D2015-1934: “Respondent’s use of the Domain Name in a phishing scheme to divert customer payments from the Complainant to the Respondent did not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Domain Name”.
page 5 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). Having reviewed the case file, the Panel finds that Respondent’s registration and use of the disputed domain name constitutes bad faith under the Policy. As noted above, the disputed domain name reflects Complainant’s prior registered MAXON mark in its entirety, albeit with just a minor typographical variation, a classic case of typosquatting which has been deemed as a strong indicative of bad faith under a number of UDRP cases.4 Further, the inclusion of an email address linked to the disputed domain name in a man in the middle phishing email attack against Complainant and its reseller simply reinforces such bad faith inference.5 Thus, the overall evidence indicates that Respondent’s choice of the disputed domain name was deliberate for its confusing similarity with Complainant’s MAXON mark, and with the intention to commercially benefit therefrom by deceiving Complainant’s clients, which denotes bad faith. 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 disputed domain name be transferred to Complainant. /Gerardo Saavedra/ Gerardo Saavedra Sole Panelist Date: August 28, 2024 4See Redbox Automated Retail, LLC d/b/a Redbox v. Milen Radumilo, WIPO Case No. D2019-1600: “Typosquatting itself is evidence of relevant bad faith registration and use”. See also Go Daddy Software, Inc. v. Daniel Hadani, WIPO Case No. D2002-0568: “Typosquatting is virtually per se registration and use in bad faith”. 5See BinckBank N.V. v. Helo Holdings LTD, WIPO Case No. DNL2010-0014: “Phishing activities pose a severe threat to customers, trademark holders and third parties”. See also WIPO Overview 3.0, section 3.4.
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