ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION SGB Finance v. Charles Sullivan Case No. DIO2023-0036 1. The Parties The Complainant is SGB Finance, France, represented by Avocat au Barreau de Paris, France. The Respondent is Charles Sullivan, United Kingdom. 2. The Domain Name and Registrar The disputed domain name is registered with NameSilo, LLC (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 26, 2023. On September 27, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 27, 2023, 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 (Redacted for Privacy) and contact information in the Complaint. The Center sent an email communication to the Complainant on September 28, 2023, 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 October 2, 2023. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the .IO Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 October 13, 2023. In accordance with the Rules, paragraph 5, the due date for Response was November 2, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 3, 2023. The Center appointed Federica Togo as the sole panelist in this matter on November 27, 2023. 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. page 2 4. Factual Background It results from the Complainant's undisputed allegations that it is active in the financial and insurance services intended to the purchase of vehicles and more particularly of boats at an international level. The Complainant is the registered owner of European Union trademark registration no. 016078503 SGB FINANCE, registered on June 13, 2017 for services in classes 35 and 36. It uses the domain name for its official website for promoting its services. The disputed domain name was registered on May 23, 2023, and resolved to a web page allegedly related to finance trading (i.e., a trading platform). Furthermore, the evidence provided by the Complainant shows that the disputed domain name was used to contact third parties also via email, while pretending to be the Complainant's employees, offering them the purchase of financial products, in order to obtain private information and amongst others credit cards numbers and to extort funds at the end. On this regard, the Complainant filed a formal complaint against unknown persons with the Rome Public Prosecutor's Office in July 2023. 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a cancellation of the disputed domain name. Notably, the Complainant contends that the disputed domain name is confusingly similar to the Complainant's trademark since it contains its trademark SGB FINANCE entirely, hence is almost identical to its trademark. The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. According to the Complainant, considering the fraudulent use made by the Respondent, it is clear that the latter does not have any rights or legitimate interests in respect of the disputed domain name. The Respondent is not a licensee of the Complainant, nor is authorized to use the Complainant's trademark and/or to market products and services bearing said trademark and/or to represent the Complainant and/or to act on its behalf either. The Complainant does not have any relationship whatsoever with the Respondent. Finally, the Complainant contends that the disputed domain name was registered and is being used in bad faith. According to the Complainant, the Respondent intentionally attempted to attract Internet users, by creating a likelihood of confusion with the Complainant's mark as to the source, the aim being to deceive consumers in order to extort money and confidential data from them. B. Respondent The Respondent did not reply to the Complainant's contentions. page 3 6. Discussion and Findings Paragraph 15(a) of the Rules instructs this Panel to "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 requires a complainant to prove each of the following three elements in order to obtain an order that the disputed domain name be transferred or cancelled: (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 Panel will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied. A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The Panel finds the entirety of the mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. Although the addition of the other term here, being "sa", may bear on assessment of the second and third elements, the Panel finds the addition of such term does not prevent a finding of confusing similarity between the disputed domain name and the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult 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 (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. page 4 Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise. It results from the undisputed evidence before the Panel that the disputed domain has been used to send emails to third parties, while pretending to be employees of the Complainant, offering them the purchase of financial products, in order to obtain private information and amongst others credit cards numbers and to extort funds at the end. The Panel considers the evidence as sufficient to support the Complainant's credible claim of illegal activity by the Respondent. Panels have held that the use of a domain name for illegal activity here (e.g., phishing, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered or Used in Bad Faith The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent's registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1. Panels have held that the use of a domain name for illegal activity (here, phishing, impersonation/passing off) constitutes bad faith. WIPO Overview 3.0, section 3.4. Having reviewed the record, the Panel finds the Respondent's registration and use of the disputed domain name constitutes bad faith under the Policy. As explained above, it results from the undisputed evidence submitted by the Complainant that the disputed domain name has been used for sending fraudulent emails in the name of employees of the Complainant, in order to obtain private information and amongst others credit cards numbers and to extort funds at the end. In addition, the use of the disputed domain name in such an illegal scheme additionally demonstrates that the Respondent not only knew of the Complainant, its business and marks, but also attempted to pass itself off as the Complainant. Based on the available record, the Panel finds that the Complainant has established the third element of the Policy. 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 be cancelled. /Federica Togo/ Federica Togo Sole Panelist Date: December 11, 2023
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