The Complainant is Mediarex Enterprises Limited, Malta, internally represented.
The Respondent is Yong Woon Chin, Webolutions, Malaysia. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 21, 2020. On February 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 4, 2020, 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 and contact information in the Complaint. The Center sent an email communication to the Complainant on March 11, 2020 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 amendment to the Complaint on March 13, 2020. 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 the Respondent of the Complaint, and the proceedings commenced on March 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 5, 2020. On March 30, 2020, the Center received an informal email communication from the Respondent. The Respondent did not submit a formal response. Accordingly, the Center notified the commencement of Panel appointment process on April 7, 2020. The Center appointed Nick J. Gardner as the sole panelist in this matter on April 22, 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 trades under the name “Chiliz” and promotes its business via a website linked to the domain name On August 19, 2019 the Respondent registered the Disputed Domain Name. It is linked to a website which is in substance a reproduction of the Complainant’s own website. Not all of the content is literally identical but a side-by-side comparison shows the content is substantively the same. Further, in some cases (for example images of the team responsible for development of the technology) the Complainant’s content has been literally copied. 5. Parties’ Contentions A. Complainant The Complainant’s case can be summarized as follows. a) The Disputed Domain Name is confusingly similar to its CHILIZ trademark. b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Name. c) The Respondent has registered and used the Disputed Domain Name in bad faith. The Complainant says the Respondent’s website is used as part of a “phishing” exercise to unlawfully and dishonestly collect data. B. Respondent The Respondent sent an email communication to the Center, but no Response has been filed. 6. Discussion and Findings Preliminary issue – lack of formal Response The Panel notes that an informal email communication has been received from the Respondent stating that it wishes to: “respond to the emails communication on behalf of my personal capacity, and fully cooperate in your complaint investigation”. However, the Respondent did not submit any further communication and did not reply to the Complainant’s contentions. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file a Response. Substantive Issues Paragraph 4(a) of the Policy states that the Complainant must prove each of the three following elements in respect of the Disputed Domain Name: (i) the Disputed Domain Name is identical to or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in the Disputed Domain Name; (iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the CHILIZ trademark. The Panel finds the Disputed Domain Name is confusingly similar to the CHILIZ trademark. It involves the substitution of “c” for “z”. The Panel agrees in this regard with the approach set out in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9, namely: “1.9 Is a domain name consisting of a misspelling of the complainant’s trademark (i.e.,typosquatting) confusingly similar to the complainant’s mark? A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. It is well established that the country code Top-Level Domain (“ccTLD”) “.co” does not generally affect the domain name for the purpose of determining whether it is identical or confusingly similar (see for example Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429). Accordingly the Panel finds that the Disputed Domain Name is identical to the Complainant’s CHILIZ trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy non-exhaustively lists three circumstances that demonstrate a right or legitimate interest in the domain name: “(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” None of these apply in the present circumstances. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the CHILIZ trademark. The Complainant has prior rights in the CHILIZ trademark which precede the Respondent’s registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce relevant evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see for example Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455). The Panel finds that the Respondent has failed to produce any evidence to establish any rights or legitimate interests in the Disputed Domain Name. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith In the present circumstances, the distinctive nature of the CHILIZ trademark and the fact that the Disputed Domain Name is linked to a website which clearly has been copied from the Complainant’s website and the lack of any explanation from the Respondent as to why it registered the Disputed Domain Name lead the Panel to conclude the registration and use were in bad faith. The Complainant says the Respondent is using its website as part of a “phishing” exercise. The evidence before the Panel does not provide sufficient material for the Panel to reach a conclusion on whether that is correct. Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location. In the present circumstances, it seems likely that factor (iv) applies but it is not entirely clear to the Panel what commercial gain the Respondent is obtaining from its website. However, the Panel notes that in any event this list is non exhaustive and takes the view that the use of the Disputed Domain Name (which consists of a typo of the CHILIZ trademark) to link to a website which is in substance copied from the Complainant’s website is itself evidence of bad faith. This is particularly so given that the Respondent has not filed a formal Response and hence has not availed itself of the opportunity to present any case of good faith that it might have. The Panel infers that none exists. Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled. 7. Decision For all the foregoing reasons, in accordance with paragraphs 4 of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name, Nick J. Gardner
Sole Panelist
Date: May 11, 2020
Full & Egal Universal Law Academy