The Complainant is Bruichladdich Distillery Company Limited of Islay, Argyll, United Kingdom of Great Britain and Northern Ireland (“UK”), represented by Nameshield, France.
The Respondent is Name Redacted.1 2. The Domain Name and Registrar
The disputed domain name is registered with D, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 27, 2016. On October 27, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 27, 2016, the Registrar 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 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 31, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 20, 2016. On November 3, 2016, the Center received an email communication from the husband of a person with the same name as the Respondent, claiming that she had no connection to the disputed domain name even though the name and postal address found in the Communications Section of the Written Notice belonged to her. The email furthermore stated that the email address and the phone number related to the Respondent did not belong to her. The Center acknowledged receipt of the email communication on November 10, 2016, transmitting it only to the email address of the sender. The Center, thereafter, notified the Parties of this email communication and included the text used when acknowledging receipt of this communication. No formal Response was submitted by the Respondent and accordingly, on November 21, 2016, the Center notified the Parties of commencement of Panel Appointment Process.
The Center appointed Charles Gielen as the sole panelist in this matter on November 24, 2016. 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 owns a number of registrations of the trademark BRUICHLADDICH, such as US trademark registration number 1206660 registered on August 24, 1982 and International Registration number 929602 registered on May 24, 2007. The International Registration is registered for wines, spirits (beverages) and liqueurs.
The disputed domain name was created on October 14, 2016, and resolves to a website with pay per click links related to the Complainant and its competitors, along with the text “this site is under development”. 5. Parties’ Contentions A. Complainant
The Complainant argues that it is a Scottish alcohol manufacturer that produces a wide range of high quality Scotch whisky for which the trademark BRUICHLADDICH is used since 1881 and that it is a subsidiary of the Remy Cointreau Group. Furthermore the Complainant is the owner of many domain names including the distinctive trademark BRUICHLADDICH.
According to the Complainant the website to which the Respondent’s domain name resolves, is a parking page with pay per click links in relation to products of the Complainant. Furthermore, the Complainant argues that on October 18, 2016, an employee of the Complainant has received an email from an email address linked to the disputed domain name with the object “Payment!”
The Complainant firstly contends that the disputed domain name is identical to its trademark BRUICHLADDICH, because it includes this trademark in its entirety without any adjunction or deletion. This means that this is sufficient to establish confusing similarity.
Secondly, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not related in any way with the Complainant’s business. Also the Respondent is not commonly known under the disputed domain name. Furthermore, the website in relation with the disputed domain name is a parking page with pay per click links in relation with the Complainant’s activity. This is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use.
Thirdly, the Complainant argues that the disputed domain name is registered and is used in bad faith. First of all, the website in relation with the disputed domain name is a parking page with pay per click links in relation with the products of the Complainant since its registration. This means that by using the disputed domain name the Respondent intentionally attempts to attract, for commercial gain, Internet users to the websites by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of the products on linked websites. Furthermore, the disputed domain name was also registered for the purpose of creating fraudulent email addresses. The Respondent has sent an email from this address to an employee of the Complainant with the object “Payment!”. Thereby, the Complainant believes that the use of the disputed domain name for scamming activities is another indication of bad faith, since such practice could seriously harm the interests of the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions, but the husband of the Respondent claimed that the disputed domain name has been fraudulently registered under her name. 6. Discussion and Findings
The Panel is of the opinion that the Complainant’s contentions are reasoned and that the disputed domain name should be transferred to the Complainant pursuant to the Policy. Before giving the reasons for its decision, the Panel observes the following. Pursuant to paragraph 2(a) of the Rules, the Center notified the Respondent of the Complaint on the known address revealed by the Registrar and the publicly available WhoIs. Subsequently, and as mentioned in paragraph 3 of this decision, the Center received an email from someone who is claiming to be the husband of the Respondent saying that her physical address was correct but that she did not have anything to do with the disputed domain name or the contact email address used when notifying the Complaint. The Panel observes that there are two possibilities. Either the husband of the Respondent is correct, which means that the Respondent is subject of identity theft, which in itself is sign of bad faith, or the husband of the Respondent is not providing accurate information, in which case this also shows bad faith. The Panel further notes that it lacks resources and jurisdiction to investigate the true identity of the Respondent. Either way, this does not influence the outcome of this case. A. Identical or Confusingly Similar
The Complainant proves that it has rights in the trademark BRUICHLADDICH based on numerous trademark registrations. The term “bruichladdich” in the disputed domain name is identical to the trademark BRUICHLADDICH. The added suffix “.co” does not change the finding that the disputed domain name is confusingly similar, since the “.co” is generally understood to be a technical requirement. In making the comparison between the trademark and the disputed domain name the ccTLD “.co” is usually disregarded. The Panel is of the opinion that applying these principles to this case, the disputed domain name is confusingly similar to the trademark.
Therefore, the requirement under paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests
The Panel is of the opinion that the Complainant made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The first reason is that the Complainant’s trademark is not a term one would choose as a domain name without having specific reasons to choose such a term and this word certainly is not a descriptive term serving to indicate specific characteristics of any goods or services. Furthermore, the disputed domain name was registered long after the Complainant started to use the trademark BRUICHLADDICH. The Respondent did not contest that it is not related in any way to the Complainant’s business. Also the Respondent is not commonly known under the disputed domain name. Finally, the Complainant made it clear that the disputed domain name was not used in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, since the website to which the Respondent’s domain name resolves, is a parking page with pay per click links in relation to products of the Complainant. The Respondent has not come forward claiming any rights or legitimate interests and the Panel does not find so in the present record.
In view of the aforementioned, the Panel is of the opinion that the requirement of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith
The Panel is of the opinion that the disputed domain name was registered and is being used in bad faith. In the circumstances of this case, whoever registered the disputed domain name did so in bad faith and with knowledge of the Complainant’s rights.
The main reasons for this conclusion are as follows. First, there can be no doubt that it was the intention of the Respondent to choose a confusingly similar domain name since on the website to which the disputed domain name resolves, there are numerous links and references to the Complainant’s products. Second, by registering and using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of the Complainant as to the source, affiliation or endorsement of the website of the Respondent. This becomes clear when seeing that this website is a parking page with pay per click links in relation to products of the Complainant. Furthermore, the disputed domain name apparently was also registered for the purpose of creating fraudulent email addresses. The Respondent has sent an email from this address to an employee of the Complainant with the object “Payment!”. Such use of the disputed domain name for scamming activities is another indication of bad faith.
The Panel therefore considers the requirement of paragraph 4(a)(iii) of the Policy to be met. 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.
Charles Gielen
Sole Panelist
Date: December 5, 2016
1 The Panel has decided that, since the Respondent might have been the subject of identity theft and there is no purpose to be served by including the named Respondent in this decision, the name and location of the Respondent has been redacted from the caption and body of this decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name that includes the named Respondent, and has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding. However, the Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published based on exceptional circumstances. See Banco Bradesco S.A. v. FAST-12785241 Attn. B / Name Redacted,WIPO Case No. D2009-1788.
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