Complainant is Juniper Networks, Inc. of Sunnyvale, California, United States of America, represented by Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, United States of America.
Respondent is Qonnect-IT of Etten-Leur, the Netherlands, self-represented. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with SIDN through TransIP B.V. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 6, 2016. On the same date, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On October 7, 2016, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 11, 2016. In accordance with the Regulations, article 7.1, the due date for Response was October 31, 2016. Respondent sent email communications to the Center on October 15, 2016 and October 17, 2016. Respondent did not submit any formal response. In accordance with the Regulations, on November 1, 2016, the Center notified the parties that it would forward Respondent’s email communications to SIDN for the commencement of the mediation process.
On November 3, 2016 SIDN commenced the mediation process. On November 14, 2016 SIDN confirmed that the dispute had not been solved in the mediation process.
The Center appointed Willem J. H. Leppink as the panelist in this matter on November 21, 2016. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
The following facts are undisputed.
Founded in 1996, Complainant is a publicly traded company on the NASDAQ Exchange, involved in the development and marketing of customized, next-generation Internet Protocol (IP) routers for private and public access networks. Complainant has over 9,300 employees and maintains offices in 43 countries.
Complainant owns several trademark registrations for JUNIPER NETWORKS in different countries and territories, including the European Union Trade Marks nos. 000664805 and 004215166, registered on July 7, 1999 and January 5, 2006 respectively, for goods in classes 9, 37 and 42. These trademarks will in singular be referred to as the “Trademark”.
According to Respondent, it operates a company which provides hosting services.
The Domain Name was registered by Respondent on May 12, 2014. At the time of filing of the Complaint, the Domain Name resolved to a website nearly identical to Complainant’s website. 5. Parties’ Contentions A. Complainant
Insofar as relevant for this case, the Complainant contends the following.
Respondent uses the Domain Name to lure Internet users to a pirate website where Respondent passes itself off as the official Juniper Networks website. Specifically, with the exception of the misspelling of “Juniper”, the Domain Name resolves to a website that is identical to the Complainant’s official website. Respondent’s website has copied Complainant’s logos, registered trademarks, photographs, copyrighted content, and distinctive trade dress. Respondent’s website also includes a webpage that allows users to chat with Respondent. This webpage is an attempt to lure unwary consumers into divulging personal or financial data that would expose the consumer to financial and/or identity theft and other cyber-crimes.
The Domain Name is confusingly similar to Complainant’s Trademark, because it is virtually identical to the Trademark. The only differences between the Domain Name and the Trademark are that Respondent: (1) misspells the word “juniper” as “jupiler”; (2) removes the space between “Juniper” and “Networks”; and (3) adds the non-distinguishing country code Top-Level Domain (“ccTLD”) “.nl”. Such changes are not sufficient to distinguish the Domain Name from Complainant’s Trademark.
Respondent has no rights or legitimate interests in the Domain Name for the following reasons. First, Respondent’s registration and use of the Domain Name to impersonate Complainant and operate a pirate website to perpetuate fraud does not constitute a bona fide offering of goods or services or fair use pursuant to article 3.1 of the Regulations. Second, Respondent is not, and has not been, commonly known by the Domain Name. Nothing in Respondent’s WhoIs information or the record demonstrates that Respondent is commonly known by the Domain Name, and Complainant has not authorized Respondent to use its Trademark. Third, because the Domain Name is formed using the Trademark in its entirety, substituting only two letters, Respondent is engaged in typosquatting.
Respondent’s registration and use of the Domain Name squarely meet the grounds of bad faith outlined in article 3.2 of the Regulations, as well as additional grounds of bad faith defined in previous Uniform Domain Name Dispute Resolution Policy panel decisions. First, Respondent’s registration and use of the Domain Name constitute bad faith under article 3.2(d) of the Regulations because Respondent has attempted to commercially benefit by attracting Internet users to its fraudulent website by creating a likelihood of confusion with Complainant’s Trademark as to the source, sponsorship, affiliation, or endorsement of Respondent’s counterfeit website. Second, Respondent’s registration and use of the Domain Name constitute bad faith under article 3.2(c) of the Regulations because Respondent is disrupting Complainant’s business by targeting Complainant’s customers and the public for a fraudulent phishing scheme. Third, Respondent’s registration and use of the Domain Name constitute bad faith under the Regulations because Respondent is engaged in typosquatting. The Domain Name is a misspelling of the Trademark. Finally, in light of: (1) Complainant’s European Union trademark registrations, as well as its international trademark registrations for its Trademark; (2) Complainant’s long-standing use of the Trademark; (3) the fact that the Domain Name is confusingly similar to Complainant’s Trademark; (4) the international recognition of the Trademark; and (5) the fact that Respondent has created a pirate website that unscrupulously copies Complainant’s official website, Respondent undoubtedly knew of Complainant’s rights in the Trademark prior to registering the Domain Name. By registering the Domain Name with knowledge of Complainant’s rights in the Trademark, Respondent acted in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. Respondent has, however, informed the Center on October 15, 2016 that it registered the Domain Name for one of its users. On October 17, 2016, Respondent informed the Center that Respondent does not have any experience with procedures (like the proceedings under the Regulations). It was providing hosting for some friends. It attempted to remove the registration and mentioned that it was informed that the registration of the Domain Name was not meant to harm anyone and was created as “a joke between friends”. Finally, Respondent indicated that it had “officially ended the registration of J to make sure no further abuse could be made with this domain”; however, Respondent maintained the registration. 6. Discussion and Findings
Pursuant to article 2.1 of the Regulations Complainant must prove each of the following three elements:
a. the Domain Name is identical or confusingly similar to:
I) a trademark or trade name protected under Dutch law in which Complainant has rights; or
II) a personal name registered in the General Municipal Register (Gemeentelijke Basisadministratie) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which Complainant undertakes public activities on a permanent basis; and
b. Respondent has no rights to or legitimate interests in the Domain Name; and
c. the Domain Name has been registered or is being used in bad faith.
As Respondent has not filed a (substantive) response to the Complaint, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact. A. Identical or Confusingly Similar
Pursuant to article 2.1(a) under I of the Regulations, Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which Complainant has rights.
The Panel agrees with the consensus view that the first element of the Regulations serves essentially as a standing requirement. The threshold test for confusing similarity under the Regulations involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms. Application of the confusing similarity test under the Regulations would typically involve a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name.
The Panel finds the Domain Name confusingly similar to Complainant’s Trademark as the only two differences between the Domain Name and the Trademark are the place of the letter “p” and the letter “l” instead of the letter “n”, apart from the ccTLD “.nl”. Such changes are not sufficient to distinguish the Domain Name from Complainant’s Trademark.
The Complainant has therefore established the first element of article 2.1 of the Regulations. B. Rights or Legitimate Interests
Pursuant to article 2.1 of the Regulations, Complainant must demonstrate that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent may demonstrate such rights or legitimate interests on its part inter alia through the following circumstances listed in article 3.1 of the Regulations:
a. before having any notice of the dispute, [Respondent] made 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;
b. [Respondent] as an individual, business or other organization is commonly known by the Domain Name;
c. [Respondent] is making a legitimate noncommercial use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands.
The Panel notes that Complainant has produced screen captures of both its official website and Respondent’s website under the Domain Name, showing that Respondent has copied Complainant’s website with the exception of the misspelling of “Juniper” as “Jupiler”. Complainant has made out a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name.
Based on the record, Respondent is not, and has not been, commonly known by the Domain Name; the Respondent made no demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services; and there is no legitimate noncommercial use of the Domain Name.
The Panel finds that Respondent, through a website that was similar to the official website of Complainant, seemed to impersonate Complainant. Such use does not constitute a right or legitimate interest within the meaning of article 2.1 (b) of the Regulation.
Complainant has thus established the second element of article 2.1 of the Regulations. C. Registered or Used in Bad Faith
The Panel refers to its considerations under Section 6.B.
Apart from the other contentions, the Panel notes that Respondent has failed to contest Complainant’s contention that Respondent has created a pirate website that unscrupulously copied Complainant’s official website. It is obvious that Respondent was aware of Complainant’s rights in the Trademark prior to registering the Domain Name. Respondent has furthermore implicitly confirmed registration and use in bad faith by calling the registration “a joke” and alleging that it ended the registration so that “no further abuse could be made with this domain”.
In light of the above, the Panel finds that the Domain Name has been registered and used in bad faith.
Complainant has thus also established the third element of article 2.1 of the Regulations. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name, , be transferred to Complainant.
Willem J. H. Leppink
Panelist
Date: November 25, 2016
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