The Complainant is Harwood Capital LLP, United Kingdom (“U.K”), represented by BDB Pitmans LLP, U.K.
The Respondent is Privacy Service Provided by Withheld for Privacy ehf, Iceland / Diamond global, Tycryptotrading, United States of America.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 26, 2021. On July 26, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 27, 2021, 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 July 27, 2021 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 amended Complaint on August 1, 2021.
The Center verified that the Complaint together with the amended 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 August 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 27, 2021.
The Center appointed John Swinson as the sole panelist in this matter on September 13, 2021. 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 BackgroundThe Complainant is funds manager that was established in 2003.
The Complainant’s website is located at “www.harwoodcapital.co.uk”.
The Complainant owns U.K. trademark registration No. 03017847 for HARWOOD that was filed on August 13, 2013 and registered on January 9, 2015.
The Respondent did not file a response, so little is known of the Respondent.
The disputed domain name was registered on December 18, 2020.
The website at the disputed domain name appears to be a website operated by the Complainant. It includes photographs of the Complainant’s executive team and information about the Complainant.
However, the email addresses included on that website, supposedly email addresses of the Complainant, would not be received by the Complainant, because these email addresses use the disputed domain name.
5. Parties’ Contentions A. ComplainantThe Complainant made the following submissions:
The Complainant owns U.K. trademark registration No. 03017847 for HARWOOD that was filed on August 13, 2013 and registered on January 9, 2015.
The disputed domain name includes the words “harwood”, “capital” and “investor”. The elements “capital” and “investor” are merely descriptive, particularly because the disputed domain name resolves to a page of a company which supposedly offers asset management services. “Harwood”, the distinctive element in the disputed domain name, is identical to the Complainant’s trademark.
The Complainant has not authorised the Respondent to use its HARWOOD trademark. The Respondent is not known by the names “harwood” or “harwood capital investor” and has no trademark registrations or rights in these names. Furthermore, the Respondent is not using the disputed domain name in connection with a bona fide or legitimate offering of goods or services.
The disputed domain name resolves to an active website. A side-by-side comparison of the content available at this website shows that the disputed domain name resolves to a website with extremely similar content, including the images of staff members of the Complainant’s organization and of the Complainant’s property in London. It is likely that this has been done to enable the Respondent to perpetrate a scam, such that potential customers of the Complainant provide personal details and make payments via the Respondent’s fake website, believing the website to be operated by the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsTo 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 trademark 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 and is being used in bad faith.
The onus of proving these elements is on the Complainant even though the Respondent failed to submit a Response.
Paragraph 15(a) of the Rules directs the Panel to decide the 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.
A. Identical or Confusingly SimilarParagraph 4(a)(i) of the Policy provides that the Complainant must establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant has clearly proven ownership of a registered trademark for HARWOOD.
The disputed domain name includes the Complainant’s trademark HARWOOD in its entirety.
The disputed domain name also includes the terms “capital” and “investor”. The Complainant’s legal name is Harwood Capital. Its business is to attract investors.
The Panel accordingly concludes that the disputed domain name is confusingly similar to the Complainant’s HARWOOD trademark, disregarding the Top-Level Domain “.co”.
The fact that the Respondent is targeting the Complainant’s trademark (as discussed below) supports the Complainant’s position, in that this assists in demonstrating that its trademark has achieved significance as a source identifier.
The Complainant succeeds on the first element of the Policy in relation to the disputed domain name.
B. Rights or Legitimate InterestsThe second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or
(iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name.
The onus of proving this requirement, like each element, falls on the Complainant.
Previous UDRP panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent.
Accordingly, it is sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden of production will shift to the respondent to rebut that prima facie case.
The Complainant asserts that the Complainant has not authorized the Respondent to use the HARWOOD trademark, and that the Respondent has no trademark registrations for HARWOOD or HARWOOD CAPITAL INVESTOR, and that the Respondent is not known by these terms. The Complainant also asserts, for the reasons discussed in relation to the third element discussed below, that the Respondent’s use of the disputed domain name is not bona fide or legitimate.
As discussed below, the evidence points to the Respondent illegally masquerading as the Complainant.
The Complainant has established a prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that none of the circumstances listed in paragraph 4(c) of the Policy apply in the present circumstances, and that the Respondent has no rights or any legitimate interests in the disputed domain name.
The Complainant succeeds on the second element of the Policy in relation to the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the disputed domain name in bad faith.
In the present circumstances, the fact that the disputed domain name resolves to a website which impersonates the Complainant leads the Panel to conclude the registration and use of the disputed domain name are in bad faith.
The Respondent’s conduct demonstrates the Respondent’s knowledge of the Complainant and its trademark.
By registering and using the disputed domain name to impersonate the Complainant, it is clear that the Respondent specifically knew of and targeted the Complainant and trick the public into believing that the Respondent is a trusted financial services provider.
The Panel agrees with the Complainant that the Respondent’s website appears to be some form of scam or part of a fraudulent scheme which is manifestly evidence of bad faith. See Australia and New Zealand Banking Group Limited v. Bashar Ltd,
WIPO Case No. D2007-0031. This case was cited with approval in Regal Funds Management Pty Limited v. WhoisGuard Protected, WhoisGuard, Inc. / John Clerk,
WIPO Case No. D2020-2773 which involved a website that was masquerading as the website of a financial advisory firm. That case has similar factual circumstances of the present case.
See also: Fondation Bettencourt Schueller v. WhoisGuard Protected, WhoisGuard, Inc. / Web designer Web designer,
WIPO Case No. D2018-2750; Bytedance Ltd. v. Registration Private, Domains By Proxy, LLC/Kemal Aydin, Kemal,
WIPO Case No. D2020-3433; The Prudential Assurance Company Limited v. Prudential Securities Limited,
WIPO Case No. D2009-1561; Graybar Services Inc. v. Graybar Elec., Grayberinc Lawrenge,
WIPO Case No. D2009-1017; Gateway Fiber LLC v. Wix.com Ltd., Wix.com Ltd. / Ali Oudah, Ayadi Group,
WIPO Case No. D2021-1736; and L.M. Waterhouse & Co., Inc. v. Scott Myers, Intersearch Global,
WIPO Case No. D2021-0962.
Accordingly, the Panel finds that paragraph 4(b)(iv) of the Policy applies in the present case.
The Complainant succeeds on the third element of the Policy in relation to the disputed domain name.
7. DecisionFor 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
Sole Panelist
Date: September 27, 2021