The Complainant is Eurovia, France, represented by ORDIPAT, France.
The Respondent is Card4Call.com INC, United States of America (“United States”).
The disputed domain name <eurovla.com> is registered with DNC Holdings, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2019. On October 31, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 1, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 November 11, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2019.
The Center appointed Assen Alexiev as the sole panelist in this matter on December 4, 2019. 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 in this administrative proceeding is a French joint-stock company created in 1988. It is a leading international player in the transport infrastructure and urban development sectors. The Complainant employs 40,000 people worldwide in 450 business units in 16 countries. Its turnover for 2018 amounted to EUR 8.9 billion.
The Complainant is the owner of the following trademark registrations of the sign EUROVIA (the “EUROVIA trademark”):
- the International trademark EUROVIA with registration No. 521073, registered on February 16, 1988 for goods and services in International Classes 2, 4, 19, 37, 40, and 42; and
- the International trademark EUROVIA with registration No. 675408, registered on April 21, 1997 for goods and services in International Classes 2, 4, 19, 35, 36, 37, 40, and 42.
The disputed domain name was registered on March 5, 2019.
The Complainant submits that the disputed domain name is confusingly similar to the EUROVIA trademark. It points out that the only difference between them is that the capital letter “I” in the EUROVIA trademark is replaced by the small letter “l” in the disputed domain name, and this is not sufficient to make them dissimilar to each other.
According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name, as the Respondent has no registered trademark rights and has not been authorized by the Complainant to use the EUROVIA trademark or to register a domain name incorporating it.
The Complainant contends that the disputed domain name has been registered and used in bad faith. According to it, the Respondent must have registered the disputed domain name with an obvious typographical mistake because it knew the EUROVIA trademark, which is not a common term or name in any language and predates the registration of the disputed domain name by years, and because the Complainant is known internationally, including in the United States, where the Respondent is located.
The Complainant points out that the disputed domain name resolves to a webpage featuring pay-per-click links, on the top of which there is a link with the text “Would you like to buy this domain? Learn More”, which resolves to the brokering webpage of the Registrar. According to the Complainant, this indicates that the Respondent attempts to benefit from the likelihood of confusion of Internet users either through the sale of the disputed domain name or through revenues from the pay-per-click links posted on the associated website.
The Complainant submits that on March 11, 2019, it sent a cease a desist letter to the Respondent, but did not receive an answer.
The Respondent did not reply to the Complainant’s contentions.
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name is identical 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 Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Center has employed reasonably available means calculated to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
The Respondent has however not submitted a Response and has thus not disputed the Complainant’s statements and evidence in this proceeding.
The Complainant has provided evidence and has thus established its rights in the EUROVIA trademark.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). The Panel sees no reason not to follow the same approach here, so it will disregard the “.com” gTLD section of the disputed domain name.
The relevant part of the disputed domain name is therefore the sequence “eurovla”. The difference between it and the EUROVIA is that the EUROVIA trademark contains the capital letter “I”, while the disputed domain name contains the small letter “l”. These two signs have the same visual appearance and may easily be confused, so the replacement of the capital letter “I” by the small letter “l” in the disputed domain name does not prevent a finding of confusing similarity between the disputed domain name and the EUROVIA trademark. Rather, and in the lack of any other explanation by the Respondent, the disputed domain name appears as a typosquatting example that exploits the possibility for confusion between visually identical (in their respective upper and lower case) letters.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the EUROVIA trademark in which the Complainant has rights.
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible 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. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent has not been authorized by the Complainant to use the EUROVIA trademark or to register a domain name incorporating it, and that the Respondent has no trademark rights in the disputed domain name, since the registration of the EUROVIA trademark preceded the registration of the disputed domain name for years. The Complainant also points out that the Respondent attempts to benefit from the likelihood of confusion of Internet users by offering the disputed domain name for sale and through revenues from the pay-per-click links posted on the associated website. Thus, 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 alleged that is has rights or legitimate interests in the disputed domain name and has not disputed the statements of the Complainant and the evidence submitted by it.
The disputed domain name is confusingly similar to the EUROVIA trademark and appears as an example of typosquatting. The associated website contains pay-per-click links and includes an offer for sale of the disputed domain name.
In view of the above and in the lack of any explanation by the Respondent or evidence to the contrary, the Panel is satisfied that it is more likely than not that the Respondent, being aware of the goodwill of the EUROVIA trademark, has registered and used the disputed domain name in an attempt to exploit the trademark’s goodwill by attracting Internet users to the Respondent’s website for commercial gain by confusing them that it is affiliated to the Complainant and then switching them to third party websites through pay-per-click links included on its website. In the Panel’s view, this conduct of the Respondent does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use, and therefore does not give rise to rights and legitimate interests of the Respondent in the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 website or location or of a product or service on your website or location.
As discussed above, the disputed domain name is confusingly similar to the EUROVIA trademark and appears as an example of typosquatting. It resolves to a website that contains pay-per-click links to third party websites and includes an offer for sale of the disputed domain name. The Complainant contends that the Respondent has not received any authorization for its activities by the Complainant, and the Respondent does not dispute the statements of the Complainant or offer any plausible explanation of its actions.
Taking the above into account, the Panel accepts as more likely than not that the Respondent has registered and used the disputed domain name with knowledge of the Complainant and targeting the EUROVIA trademark. It is likely that by creating a likelihood of confusion with the Complainant’s EUROVIA trademark, the Respondent has attempted to attract traffic to the disputed domain name and confuse Internet users that they are reaching an online location affiliated to the Complainant and then switch them to third party websites through pay-per-click links for commercial gain.
Therefore, the Panel finds that the disputed domain name has been registered and used in bad faith.
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 <eurovla.com> be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: December 10, 2019