The Complainant is Teradata US, Inc., United States of America (“United States” or “US”), represented Merchant & Gould, PC, United States.
The Respondent is Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf, Iceland / Andrei Mititelu, Romania.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2021. On December 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 16, 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 December 17, 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 amendment to the Complaint on December 17, 2021.
The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the .IO Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IO Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IO 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 December 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 19, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 21, 2021.
The Center appointed Nick J. Gardner as the sole panelist in this matter on January 28, 2022. 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 relevant facts can be summarized very briefly as follows.
The Complainant is a US-based data services provider offering a range of products and services, including but not limited to those relating to computer hardware and software for use in connection with data warehousing, data management, data mining, and database analytics under its trademark. It has been in business since about 1981. Although the Complaint asserts the Complainant is famous and well known, very little actual evidence is provided as to the nature of the Complainant’s activities or its fame or size. Some material from its website is in evidence which indicates it provides a “connected multi-cloud data platform for enterprise analytics” and that it was “recognised as a cloud leader in the 2020 Gartner Magic Quadrant for Cloud Database Management systems”. Beyond this, the Panel is left with little actual evidence. The Panel does note that a search shows a Wikipedia stub article referencing the Complainant’s founding in 1979, its stock ticker symbol, number of employees (some 8,500), subsidiaries, and listing annual revenue of nearly USD 2 billion in 2021.
The Complainant is the owner of a number of US trademark registrations for the term TERADATA, including for example US Registration No. 146189 issued October 20, 1987. These trademarks are referred to in this decision as the “TERADATA trademark”.
No evidence has been provided as to the geographical scope of the Complainant’s activities and all the trademarks it has placed in evidence are US registrations. There is no evidence before the Panel of it having any business activities in Romania, which appears to be where the Respondent is located.
The Complainant is the owner of the domain name
The Respondent registered the Disputed Domain Name on September 20, 2021. The filed evidence shows it has in the past resolved to a “landing page” with an “under construction” message on it. That landing page contained a “click through” link to a LinkedIn page headed “Terradata.IO” which is then followed by a description “Digital Transformation and Analytics Consulting” and the description “Management Consulting. Bucharest”. On the page in evidence an “About” section is also shown which states “Analytics Consulting for Business, Industry 4.0 and Society 5.0. We help Business Leaders by developing computational solutions to solve complex problems”. The page also contains a link which says “see all 14 employees on LinkedIn. There appear to be other links on the page (such as “Posts”, “Jobs”, “People” and “More”), but there is no evidence as to what these lead to. At the time of this decision, the Disputed Domain Name does not resolve to an active webpage.
5. Parties’ Contentions A. ComplainantThe Complainant’s contentions can be summarized as follows:
The Disputed Domain Name is confusingly similar to the TERADATA trademark in which it clearly has rights. It simply adds an additional “R” in the TERADATA trademark which results in a term that looks virtually the same and sounds identical.
The Respondent has no rights or legitimate interests in the term “TERADATA”. There is no other meaning associated with TERADATA other than in relation to the Complainant. The Complainant says that “The TERADATA mark is a coined term and has no source-identifying meaning other than to designate Teradata’s brand of data-centric products and services and goods and services associated therewith”.
The Disputed Domain Name was registered and is being used in bad faith. The Respondent is deliberately using a confusingly similar term as part of a scheme where it is seeking to divert customers from the Complainant to itself [note that the detail and substance of this allegation is discussed in more detail below].
The Complainant also says “Moreover, upon information and belief, and according to data previously displayed on LinkedIn, several of Respondent’s alleged employees were previously employed by Complainant, imputing knowledge of Complainant and its products and services directly to Respondent. That this information was later removed from LinkedIn after Complainant and its representatives began viewing Respondent’s LinkedIn page and that of its alleged employees only furthers this evidence of bad faith”. [This allegation is discussed in more detail below.]
B. RespondentNo Response has been filed.
6. Discussion and Findings Preliminary issue – Nature of the .IO PolicySo far as the .IO Policy is concerned, the Panel notes that it is substantially similar to (though not identical to) the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) as adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”). The Panel will where appropriate apply principles that have been established in relation to the UDRP in determining this dispute.
Preliminary Issue – No ResponseThe Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the .IO Rules” to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909).
Preliminary Issue – Respondent IdentityThe Panel notes this is a case where one Respondent (Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf) appears to be a privacy or proxy service.
The Panel in this case adopts the approach of most UDRP panels, as outlined in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 4.4.5, as follows:
“Panel discretion
In all cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed.
Depending on the facts and circumstances of a particular case, e.g., where a timely disclosure is made, and there is no indication of a relationship beyond the provision of privacy or proxy registration services, a panel may find it appropriate to apply its discretion to record only the underlying registrant as the named respondent. On the other hand, e.g., where there is no clear disclosure, or there is some indication that the privacy or proxy provider is somehow related to the underlying registrant or use of the particular domain name, a panel may find it appropriate to record both the privacy or proxy service and any nominally underlying registrant as the named respondent.”
In the present case the Panel considers the substantive Respondent to be Andrei Mititelu and references to the Respondent are to that person.
Substantive MattersTo succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that:
(i) The Disputed Domain Name is identical with 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 respect of the Disputed Domain Name; and
(iii) The Disputed Domain Name has been registered or is being used in bad faith.
The Panel finds that the Complainant has rights in the TERADATA trademark.
The Disputed Domain Name is confusingly similar to the TERADATA trademark. 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:
“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 also well established that the country-code Top-Level Domain (“ccTLD”), in this case “.io”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Government Employees Insurance Company (“Geico”) v. Privacy.cc / Bulent Tekmen, WIPO Case No. DIO2020-0003.
Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and the first condition of paragraph 4(a) of the Policy has been fulfilled.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:
(i) before any notice to the Respondent of the dispute, use of, or demonstrable preparations to use, the Disputed Domain Dame or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or
(ii) the Respondent has been commonly known by the domain name, even if the Respondent has acquired no trade mark 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the confusingly similar Disputed Domain Name or to use the TERADATA trademark. 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 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 his rights or legitimate interests in the Disputed Domain Name. Conceivably (i) or (ii) might be of relevance here but in circumstances where the Respondent does not file a Response the Panel is unable to reach a conclusion on those issues. In any event see discussion on bad faith below. Accordingly, the Panel finds that the Complainant has met its burden and the second condition of paragraph 4(a) of the Policy has been fulfilled.
C. Registered or Used in Bad FaithThe Panel does not regard this issue as immediately straightforward on the facts of this case.
The Complainant says that “The TERADATA mark is a coined term and has no source-identifying meaning other than to designate Teradata’s brand of data-centric products and services and goods and services associated therewith. That on the evidence is true. However, the term “terradata” with two “r’s” can also be viewed as combining two ordinary words – “terra” and ”data”. “Data” is an ordinary English word. “Terra” is a word of Latin origin meaning land or earth but still in some use today. The Panel does not regard the combination of “terra” and “data” as so unusual as to render the possibility of independent derivation manifestly impossible. The Panel also notes the LinkedIn page the Complainant placed in evidence shows at least one other organisation using the term – a company called Terradata AG apparently active in “Construction”.
It seems to the Panel that in these circumstances the question of why the Respondent chose the Disputed Domain Name, what his motives were, and what his knowledge of the Complainant was, are critical
Under the Policy, evidence of registration or use in bad faith (notably different here from the UDRP which requires that both conditions (“registration and use”) be met) is established by, amongst other factors, circumstances which indicate that “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location”.
The Complainant says that is what the Respondent is doing – for example the Complainant says:
“Furthermore, Respondent does not use the mark for legitimate noncommercial or fair use ….. because Respondent uses the [Disputed] Domain Name to perpetuate a scheme that involves deceiving consumers into believing its website is a legitimate offering of data-related products and services by Teradata under the TERADATA trademark”; and
“Unsuspecting consumers attempting to visit Teradata’s website at teradata.com to examine or otherwise request its data-related products and services offered under the TERADATA mark may therefore inadvertently visit Respondent’s site because the [Disputed] Domain Name includes the TERADATA mark in its entirety and offers overlapping and highly related goods and services thereunder and ultimately be led to the sale of products and services offered by Respondent. Consumers are likely to be confused regarding the content of the site in that it displays the exact same goods and services offered by Teradata under its TERADATA mark in competition with Teradata. Respondent, in turn, profits off of its use of the TERADATA mark in connection with the Domain Name in its offering of competitive data-based goods and services on a website intended to trick consumers into believing they have reached Complainant and Complainant’s website”; and
“Respondent has not used and is not using the Domain Name for a legitimate noncommercial or fair use …. because the name is used to resolve to a website displaying for sale competitive services to those offered by Teradata”.
It seems to the Panel that this approach exaggerates the evidence. There is no evidence that the Respondent had a website which displays for sale services competitive to those of the Complainant. It has however had a website with an “under construction” message which contains an embedded link to a LinkedIn page which describes an IT consulting business in Romania. That business seems to be a consulting business directed at areas which in some ways overlap with the Complainant’s business which the Panel assumes means the Complainant suggests that consumers will be confused into believing the Respondent is somehow an authorized affiliate, however unlikely. It does not in any event seem likely to the Panel that this is a deliberate and concerted attempt to impersonate the Complainant – if it was an “under construction” webpage with an embedded link to a LinkedIn page hardly seems a very effective means of doing so.
The Panel does not therefore consider it can simply be satisfied that Policy 4(c)(iv) applies.
Against this the Respondent has failed to give any explanation at all as to how or why he (apparently a consultant in a similar area to the Complainant) came to choose the term “terradata” as the operative part of the Disputed Domain Name. Even if he did independently derive the term then (absent any credible explanation from the Respondent – and none has been offered) the Panel finds it difficult to believe the Respondent did not become aware of the Complainant once he decided to register the Disputed Domain Name. The most cursory of Internet searches at that time would have revealed the existence of a large IT services company with an almost identical name. What did the Respondent do at the time – the Panel does not know because the Respondent has not bothered to tell the Panel. The Panel thinks this calls for an explanation from the Respondent.
It also seems significant to the Panel that the Respondent appears to have changed the way the Disputed Domain Name is being used since the Complaint was filed. It now does not resolve to any sort of webpage. Again absent any credible explanation from the Respondent this suggests to the Panel that (when faced with the Complaint) the Respondent has recognised that his usage of the Disputed Domain Name was not justifiable.
A further issue is the question of whether the Respondent has employed people who previously worked for the Complainant. The Panel really does not know what to make of this allegation which is that “several of Respondent’s alleged employees were previously employed by Complainant”. It is said that this fact gives the Respondent actual knowledge of the Complainant. The allegation is made in very vague terms “on information and belief” and no details are given of who these employees are. Indeed there is no evidence before the Panel of the Complainant ever having any business or employees in Romania – which is presumably where the employees in question are now said to work for the Respondent. The Panel does not attach any weight to this allegation given the lack of detail or any form of corroborating material.
Overall in the present circumstances the Panel cannot clearly determine which, if any, of the factors set out above under paragraph 4(b) of the Policy may apply. However, the Panel notes that in any event this list is non exhaustive and takes the view that the acquisition of the Disputed Domain Name with knowledge of the Complainant’s trademark can, depending on the case circumstances create an inference of bad faith. In the present case the Panel ultimately concludes that the Complainant has presented a sufficient case to raise an inference that it is more likely than not that this was the case. It does so given the Disputed Domain Name is very similar indeed to the Complainant’s trademark; the Respondent is engaged in a business area that is at least similar to that of the Complainant; and the Panel thinks the Respondent must at the very least have become aware of the Complainant when he selected the Disputed Domain Name. The Respondent has been given an opportunity to provide any legitimate explanation he may have to counter this inference. In that respect the burden of production in this respect is effectively shifted to the Respondent. The Panel finds that the Respondent has failed to produce any evidence to support a claim to good faith registration or use of the Disputed Domain Name.
As a result 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. 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
Nick J. Gardner
Sole Panelist
Date: February 11, 2022