The Complainant is The National Examination Board in Occupational Safety and Health of Leicester, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by McDaniel & Co., United Kingdom.
The Respondent is Badar Javed of Rawalpindi, Punjab, Pakistan, self-represented.
The disputed domain name <neboshuk.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2018. On May 31, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 1, 2018, 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 June 7, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 28, 2018. The Respondent filed an informal Response on June 28, 2018.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on July 17, 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’s trademark NEBOSH is an acronym of its full title The National Examination Board of Occupational Safety and Health. The Complainant is an independent examination board that provides qualifications in workplace health and safety. The mark NEBOSH is registered in various jurisdictions around the world, including in the European Union under number 008196206, registered on September 24, 2009.
The disputed domain name was registered on October 29, 2017, and currently resolves to a website containing pay-per-click links.
The disputed domain name is confusingly similar to the Complainant’s trademark NEBOSH. The Complainant’s trademark is included in the disputed domain name in its entirety combined only with the country code for the United Kingdom, “uk”.
The Respondent has no rights or legitimate interests to the disputed domain name. The disputed domain name is taking advantage of the Complainant’s trademark for commercial purposes. The Respondent is not operating a bona fide noncommercial enterprise.
By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or services on the Respondent’s website or location.
The Respondent submitted an informal Response after the response due date, essentially denying that the disputed domain name was registered in bad faith.
In order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. The third element a complainant must establish is that the domain name has been registered and is being used in bad faith.
Paragraph 4(a)(i) of the Policy requires that the Complainant establish that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark.
The Complainant owns various trademark registrations for its trademark NEBOSH. The disputed domain name includes this trademark in its entirety added with the letters “uk”, which is the country code for the United Kingdom.
The Panel finds that adding a geographic term such as a country code to a domain name otherwise identical to the Complainant’s trademark does not negate confusing similarity between the Complainant’s trademark and the disputed domain name.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s respective trademark and hence the first element of the Policy has been fulfilled.
Paragraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name.
It is widely accepted among UDRP panels that once a complainant has made a prima facie showing indicating the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270 and section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Complainant has submitted that the Respondent has no rights or legitimate interests to the disputed domain name. The Panel considers that this statement also means that the Complainant has not allowed the Respondent to use the Complainant’s trademark in the disputed domain name.
The Complainant has also claimed that the Respondent is not making legitimate noncommercial use of the disputed domain name and that the Respondent is taking advantage of the reputation and goodwill of the Complainant.
Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. In light of the Panel’s findings below, the Panel finds that there are no other circumstances which provide the Respondent with any rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the second element of the Policy is fulfilled.
Paragraph 4(a)(iii) of the Policy requires that the complainant establish that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that the following circumstances, in particular but without limitation, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that [the respondent has] registered or has 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 [the respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) [the respondent has] 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 [the respondent has] engaged in a pattern of such conduct; or
(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”
The Complainant has asserted that paragraph 4(b)(iv) of the Policy applies to the Respondent’s registration and use of the disputed domain name.
The Panel has visited the website to which the disputed domain resolves. The website is a so-called pay-per-click website containing links to other websites that contain goods or services competing with those of the Complainant. Clicking such links at the Respondent’s website generates income to the Respondent. Therefore, the disputed domain name is being used to attempt to attract Internet users to the Respondent’s website for commercial gain.
Hence, the Panel finds that the disputed domain name was registered and is being used in bad faith. Therefore, the Panel finds that the third element of the Policy is fulfilled.
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 <neboshuk.com> be transferred to the Complainant.
Tuukka Airaksinen
Sole Panelist
Date: July 31, 2018