Complainant is Pulsa S.A., Uruguay (hereinafter “Complainant”), represented by Opice Blum, Brazil.
Respondent is Dreher Leonie, Switzerland (hereinafter “Respondent”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2020. On September 10, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 14, 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. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on September 16, 2020. The Center verified that the Complaint together with the amended Complaint (hereinafter 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 September 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 9, 2020. The Center appointed M. Scott Donahey as the sole panelist in this matter on November 19, 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 Complainant is a Uruguayan company which sells meat and meat derivatives. Complainant is the owner of the trademark PULSA S.A. (Reg. No. 464721), which trademark was issued on October 24, 2015 by the Uruguayan Patent and Trademark Office. Complaint, Annex 4. Complainant sells its meat and meat products under the registered trademark PULSA S.A. Respondent registered the disputed domain name on January 24, 2020. Complaint, Annex 1. This was more than four years after Complainant registered its trademark. Complainant’s customers have complained to Complainant that they have received communications and fake invoices and contracts purporting to be from Complainant but sent by email from an email address related to the disputed domain name. Complaint, Annex 6. Respondent has constructed a functioning website purporting to be that of Complainant. Complaint, Annex 5. Respondent has used this website to deceive customers and entice them to purchase non-existent products in a scheme using Complainant’s trademarked name. Customers have ordered products, and delivered an installment payment, believing the transaction to be with Complainant. They then fail to receive any products that they purportedly purchased. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is confusingly similar to its business name and registered trademark. Complainant asserts that Respondent has no rights or legitimate interests in respect to the disputed domain name. Finally, Complainant alleges that the disputed domain name has been registered and is being used in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings “A Panel shall 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.” Paragraph 4(a) of the Policy directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and, (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and, (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of the Second-Level Domain (“SLD”) “pulsasa-uy” appended to the country-code Top-Level Domain (“ccTLD”) “.co”, which is that of the sovereign state of Colombia. The first seven letters of the SLD are identical to Complainant’s trademark, absent the periods behind the final S and final A, with the addition of a “uy”, which is the ccTLD for the country of Uruguay, in which Complainant resides and is incorporated. The ccTLD “.co” to which the foregoing is appended suggests the abbreviation for “company” in the English language, or for “companìa” in the Spanish language spoken in Uruguay. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible 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. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith Respondent has been using the disputed domain name to resolve to a web site that is similar to that of Complainant and to send email communications to Complainant’s customers and potential customers which seem to come from Complainant, to offer to sell users goods coming from Complainant, receive payment therefore, and then send nothing. Clearly this is potentially very damaging to Complainant’s reputation. This fraudulent conduct in respect of the use of the disputed domain name demonstrates that the disputed domain name was registered and used in bad faith. 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, M. Scott Donahey
Sole Panelist
Date: November 20, 2020
Full & Egal Universal Law Academy