, registration number 014704506, registered on February 22, 2016 for services in classes 9, 35, 36 and 41.The Complainant is EFESO Consulting France of Paris, France, represented by Avistem Agil'it, France.
The Respondent is Viktor Andriyan, Tir-Telecom LTD of Tiraspol, Republic of Moldova.
The disputed domain name <efesoconsulting.com> is registered with CNOBIN Information Technology Limited (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 10, 2018. On July 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 2018, 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 16, 2018 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 July 19, 2018.
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 July 23, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 13, 2018.
The Center appointed Alfred Meijboom as the sole panelist in this matter on August 16, 2018. 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.
The Complainant is a global management consultancy firm, registered in France, which owns several trademarks, including the following:
- International trademark EFESO, registration number 1326113, registered on August 5, 2016, for services in classes 9, 35, 36 and 41 and designating 15 jurisdictions; and
- European Union trademark , registration number 014704506, registered on February 22, 2016 for services in classes 9, 35, 36 and 41.
Based upon the information from the Registrar, the disputed domain name was registered on April 24, 2017. The disputed domain name currently does not resolve to a website, but - according to the undisputed contentions of the Complainant - used to resolve to a website that was an identical copy of the Complainant's website at "www.efeso.com".
The Complainant alleges that the disputed domain name is identical or confusingly similar to the trademarks identified in Section 4 above. According to the Complainant, its word mark is incorporated in the disputed domain name in its entirety, whilst the word elements of the Complainant's figurative mark are identical to the disputed domain name.
The Complainant further alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name because the Respondent has no contractual or proprietary rights in respect of the disputed domain name, was not authorized or licensed by the Complainant to register and use the disputed domain name and nevertheless has used the disputed domain name to copy the Complainant's website and identity, using the identical website for unlawful activities. The Complainant alleges that the Respondent has actually "hired" a person as Online Service Manager for the Complainant's company as a result of a received job application through the Respondent's website and has proceeded to assign that person several tasks, such as setting up an office in Oakland, California (United States of America). When that person was subsequently requested to receive cash payments in his bank account, he contacted the Complainant's HR desk, at which point the fraud became evident.
The Complainant further claims that the Respondent registered and used the disputed domain name in bad faith as it reproduced the Complainant's identity for the purpose of unlawful activities.
The Respondent did not reply to the Complainant's contentions.
The Respondent did not file a response. However, as set out in section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), the consensus view of UDRP panels is that the respondent's default does not automatically result in a decision in favor of the complainant. The complainant must still establish each of the three elements required by paragraph 4(a) of the Policy. Although the panel may draw appropriate inferences from the respondent's default, paragraph 4 of the Policy requires the complainant to support its assertions with actual evidence in order to succeed in these proceedings. Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, the panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules. The Panel finds that in this case there are no such exceptional circumstances.
Under the Policy, the Complainant must prove that:
(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 finds that the disputed domain name is confusingly similar to both of the Complainant's trademarks identified in Section 4 above.
It is well established that a Top-Level Domain ("TLD") such as ".com" may typically be disregarded in assessing the similarity between the trademark(s) on the one hand and the disputed domain name(s) on the other hand. The Panel finds no special circumstances in this matter that justify a different approach.
Excluding the TLD, the disputed domain name is identical to the word elements of the Complainant's European Union trademark, which the Panel considers to be the dominant element of this trademark. The figurative element of the trademark does not sufficiently reduce the similarity between the disputed domain name and this trademark. Further, the Complainant's word mark is included in the disputed domain name in its entirety. The mere addition of the purely descriptive term "consulting" does not distinguish the disputed domain name from that trademark.
Consequently, the first element of paragraph 4(a) of the Policy has been met.
The Complainant must make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent may rebut (e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).
The Panel takes note of the various undisputed allegations of the Complaint and in particular that no authorization has been given by the Complainant to the Respondent to use or register the disputed domain name and that the disputed domain name was used in bad faith, apparently as part of an extensive scam to recruit or involve unsuspecting members of the public for or in dubious monetary transactions.
Fraudulent use of the disputed domain name in this way qualifies neither as a bona fide offering of goods or services nor as a legitimate noncommercial or fair use. As such, the Panel is satisfied that the Complainant has undisputedly shown that the Respondent was involved in unlawful activities via the disputed domain name, which in itself is sufficient to find that the Complainant has succeeded in making a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name (e.g., Société Française du Radiotéléphone-SFR v. Madeleine Corvaisier, WIPO Case No. D2011-0225; Terex Corporation v. Williams Sid, Partners Associate, WIPO Case No. D2014-1742; and DPDgroup International Services GmbH & Co. KG v. WhoisGuard Protected, WhoisGuard, Inc. / Hoster Node, WIPO Case No. D2017-1629).
The Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
Pursuant to paragraph 4(b)(iv) of the Policy, there is evidence of registration and use of the disputed domain name in bad faith where the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service offered on the Respondent's website or location.
As the Respondent has not challenged the Complainant's allegation that the disputed domain name was used to resolve to a website that was an identical copy of the Complainant's website, including use of the Complainant's trademarks, and that the trademarks identified in Section 4 both predate the registration of the disputed domain name and have been in constant active and global use by the Complainant, it is obvious to the Panel that the Respondent had the Complainant's trademarks in mind when it registered the disputed domain name. The Panel is therefore satisfied that the Respondent registered the disputed domain name in bad faith.
The Panel further finds that the use which the Respondent has made of the disputed domain name until recently, i.e., to effectively pass itself off as the Complainant apparently in an attempt to recruit or involve unsuspecting members of the public in its activities of an apparently illegal nature constitutes use of the disputed domain name in bad faith (e.g., Visa Europe ltd. v. Sophie Dupont, WIPO Case No. D2014-0119). The fact that the Respondent has recently ceased to use the disputed domain name for these activities does not prevent a finding of use of bad faith.
Consequently, the third and last element of paragraph 4(a) of the Policy has also been met.
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 <efesoconsulting.com> be transferred to the Complainant.
Alfred Meijboom
Sole Panelist
Date: September 3, 2018