The Complainant is Zoho Corporation Pty Ltd, Australia, represented by Andreyev Lawyers, Australia.
The Respondent is Dromedairy Pty Ltd, Australia. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2020. On July 16, 2020, the Center transmitted by email to Instra Corporation Pty Ltd. a request for registrar verification in connection with the Disputed Domain Name. On July 17, 2020, Instra Corporation Pty Ltd. 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 .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 10, 2020. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2020. The Center appointed John Swinson as the sole panelist in this matter on September 23, 2020. 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 Zoho Corporation Pty Ltd, a company incorporated in Australia and the subsidiary of a larger corporate group conducting business globally under the name Zoho Corporation. The Complainant was incorporated in 2019 but Zoho Corporation has operated in Australia since 2010 and states that it has over 30,000 clients in Australia. Zoho Corporation provides diversified software and related services and the Complainant operates the Australian arm of this business. The Complainant is the owner of several trade marks for SITE24X7 in its own name and the name of Zoho Corporation. These include United States trade mark number 3837557, registered on August 24, 2010 in the name Zoho Corporation, and Australian trade mark number 2026508 registered on June 10, 2020 in the name of the Complainant, with a priority date of July 30, 2019 (the “Trade Mark”). The Respondent is Dromedairy Pty Ltd, a company incorporated in Australia. The Respondent did not lodge a response. The Disputed Domain Name was first registered on March 11, 2018. The Disputed Domain Name resolves to website purporting to sell “green living” and cannabis-related products, such as “5% CBD Oil. Hemp extract in almond oil. For aromatherapy.” 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions. Identical or Confusingly Similar The Disputed Domain Name is identical to the Complainant’s Trade Mark. Rights or Legitimate Interests The Disputed Domain Name resolves to a website which refers to an entity named Euphoria Trade S.R.O. This entity appears to be based in the Czech Republic. The website purports to be an online shop but the checkout function has never been enabled meaning that nothing can be purchased. It appears the website has been designed to allow the Respondent to squat on the Disputed Domain Name. The Respondent is not carrying on a business using the Disputed Domain Name and has not been known by the Disputed Domain Name. There is also no evidence that the Respondent is making legitimate noncommercial or fair use of the Disputed Domain Name. Registered or Used in Bad Faith The Disputed Domain Name was previously registered to the Casali Corporation (Cascorp) Pty Limited (“Cascorp”). Company extracts from the Australian Securities & Investments Commission (“ASIC”) indicate that the directors of the Respondent and Cascorp all share the surname ‘Casali’. By way of the letter of demand sent to Cascorp on September 5, 2019, the Complainant requested that Cascorp either cancel its registration of the Disputed Domain Name or transfer the Disputed Domain Name to the Complainant. After the Disputed Domain Name was transferred from Cascorp to the Respondent, the Complainant made the Respondent aware of its offer to Cascorp and offered to cover the Respondent’s expenses to transfer the Disputed Domain Name to the Complainant but received no reply. The failure of Cascorp and the Respondent to transfer the Disputed Domain Name to the Complainant indicates that the Disputed Domain Name is held by the Respondent in bad faith. The Disputed Domain Name was inactive for a significant period of time and the website to which the Disputed Domain Name currently resolves appeared sometime after the Complainant sent Cascorp the letter of demand on September 5, 2019. The online shop at the Disputed Domain Name is not functional. After the Complainant sent the letter of demand to Cascorp, Cascorp advised the Complainant that the website at the Disputed Domain Name was operated by an entity related to Cascorp. However, the website refers to an entity named Euphoria Trade S.R.O., which appears to be trading as Euphoria Distributors. Little information is provided on who owns and operates the website but one page on the website appears to suggest that the website owner is located in Australia. It therefore appears that the website at the Disputed Domain Name is not being used by the Respondent and was only created to enable Cascorp and now the Respondent to squat on the Disputed Domain Name and deny access to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered or subsequently used in bad faith. The onus of proving these elements remains on the Complainant even though the Respondent has not filed a response. The Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org,WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. Generally, the test for identity or confusing similarity involves a side-by-side comparison of the domain name and the trade mark to assess whether the trade mark is recognizable within the domain name. The Disputed Domain Name is identical to the Trade Mark. The Complainant is successful on the first element of the Policy. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following: - The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The Disputed Domain Name resolves to a website purporting to sell cannabis-related products but it appears that the checkout function has never been operational. The checkout function only allows the entry of addresses in the United States (which is unusual for an Australian website) and will not calculate a shipping cost. The following message appears at the top of the checkout page: “Checkout is closed. This store isn’t set up to process payments.” In addition, some of the product categories on the website have no products listed and the website displays a “coming soon” message. - The website at the Disputed Domain Name was only created after Cascorp was notified of the dispute by the Complainant’s letter of demand on September 5, 2019. - The website at the Disputed Domain Name has little content in the “About Us” section of the website. The address of the website operator is not provided, or only provided as “Australia”. There is no ABN or ACN on the website, as required by Australian law. The copyright notice at the bottom of the website does not even include a name, but merely says “DISTRIBUTOR OF EUPHORIA TRADE S.R.O.” - There is no evidence that the Complainant has authorized or otherwise given the Respondent permission to use the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. Even though the website’s checkout function is not operational, the website at the Disputed Domain Name advertises and purports to sell products. This is not a noncommercial or fair use. The Respondent has had the opportunity to rebut the prima facie case presented by the Complainant, but has chosen not to do so. The website to which the Disputed Domain Name currently resolves is, in the Panel’s view, a sham website. It is a very basic website, which, although labelled as “Euphoria Distributor”, does not function properly, is incomplete, and does not comply with Australian legal requirements. The Panel finds that this is not a bona fide use of the Disputed Domain Name, and hence does not demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name. In light of the above, the Panel finds that the Complainant has succeeded on the second element of the Policy. C. Registered or Subsequently Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered or subsequently used the Disputed Domain Name in bad faith. Registered in bad faith The Complainant appears to be well known in the field of software services and was operating in Australia at the time the Disputed Domain Name was registered. A Google search for term “Site24x7” returns a large number of results for the Complainant’s website monitoring software, which is the subject of the Trade Mark. In addition, “Site24x7” is not a common or generic term. In the Panel’s view, the reputation of the Complainant and the Trade Mark are such that Cascorp likely registered the Disputed Domain Name knowing of or to target the Complainant. Use in bad faith The website at the Disputed Domain Name was only created after the Complainant notified Cascorp of the dispute. The Disputed Domain Name was first registered on March 11, 2018. The Complainant contended that the Disputed Domain Name was once owned by Cascorp but was transferred to the Respondent after the Complainant notified Cascorp of the dispute on September 5, 2019. A copy of the WhoIs search evidencing this was not included in the case file but the Complainant did provide a copy of a letter of demand addressed to Cascorp and dated September 5, 2019, which asserted that Cascorp was the registrant of the Disputed Domain Name at that time. The Respondent had the opportunity to refute the Complainant’s contentions regarding this transfer but did file a response. ASIC company extracts of Cascorp and the Respondent indicate that the directors of both companies all share the surname ‘Casali’. This suggests that the two companies are related entities or are controlled by individuals who share a common interest. The Respondent could have disputed this evidence but did not submit a response. Accordingly, the Panel accepts the Complainant’s version of events for the purposes of its decision. The website at the Disputed Domain Name purports to sell cannabis-related products but the checkout function is not operational and the website refers to Euphoria Trade S.R.O. (a company incorporated in the Czech Republic) rather than the Respondent. Previous panels have found that the creation of a fake website can indicate bad faith use (see, e.g., Umanis v. Whois Privacy Provider (Obambu SARL),WIPO Case No. D2019-1836). There is no logical connection between the sale of cannabis-related products and the term “Site24x7”. The website has little textual content, but does include the following: “CLEAN, NATURAL LIVING 24/7 Virtually all online web stores are open 24 hours a day, 7 days a week. There is no apparent reason why the Disputed Domain Name was selected for this supposed online business, other than that it is the Trade Mark of the Complainant. It seems clear to the Panel that the website was created by the Respondent for the purpose of attempting to “shore up” a claim to entitlement to the Disputed Domain Name, rather than being in preparation for a bona fide trading use of the Disputed Domain Name. In light of the above, the Panel finds that the Complainant has succeeded on the third element of the Policy. 7. Decision For all 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, John Swinson
WELCOME TO OUR ONLINE STORE, OPEN 24X7 & DEDICATED TO EVERYTHING HEALTHY, CLEAN & NATURAL. WE OFFER A RANGE OF GREEN LIVING ITEMS INCLUDING THE EUPHORIA RANGE OF EXTRAORDINARY PRODUCTS AND SPECIAL HERBS. WITH STUNNING DESIGNS, COMPETITIVE PRICE, SUPERIOR QUALITY AND CRAZY IDEAS WE OFFER YOU SOME OF THE PRODUCTS BEST-SELLING ON THE MARKET.”
Sole Panelist
Date: October 6, 2020
Full & Egal Universal Law Academy