WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Axpo Holding AG v. Cornelius Abel

Case No. D2021-2192

1. The Parties

The Complainant is Axpo Holding AG, Switzerland, represented by Rentsch Partner AG, Switzerland.

The Respondent is Cornelius Abel, Nigeria.

2. The Domain Name and Registrar

The disputed domain name <axpofinance.com> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2021. On July 8, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 8, 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 August 3, 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 amended Complaint on August 3, 2021.

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 August 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2021.

The Center appointed Antony Gold as the sole panelist in this matter on September 22, 2021. 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 Background

The Complainant is a company based in Baden, Switzerland which provides a variety of services in the field of energy production. In addition to operating over 100 power plants in Switzerland, the Complainant is engaged in the trading of energy and the financing of energy production. It is accredited on many energy exchanges and broker platforms in Europe and trades directly in a variety of energy-related financial products.

The Complainant trades as AXPO and it has obtained trade mark registrations in many countries to protect its trading style. These include, by way of example only, Swiss trade mark, registered number P468939, for AXPO, registered on January 26, 2000 in classes 4, 11 and 35 to 42 inclusive. The Complainant also owns and operates the domain name <axpo.com>, which resolves to a website providing information about its services.

The disputed domain name was registered on March 29, 2021. As at the time of filing the Complaint, it resolved to a partially constructed German-language website, branded as “Axpo Finance”, which promoted trading in crypto-currencies. It does not presently resolve to an active website¹ .

5. Parties’ Contentions

A. Complainant

The Complainant says that the disputed domain name is confusingly similar to a trade mark in which it has rights. It refers to its trade mark rights in AXPO, full details of one of its marks having been set out above, and says that its trade mark is entirely reproduced in the disputed domain name and is the most dominant component of it. The disputed domain name also contains the word “finance”, which is descriptive of some of the services for which the Complainant’s mark has been registered and conveys the message that the Complainant is offering financial services from the disputed domain name.

The Complainant says also that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent does not have any bona fide interest in using the disputed domain name. It was registered as recently as March 2021, whereas the Complainant’s trade marks are well-known and have long been protected.

Finally, the Complainant says that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is unclear who is operating the website to which the disputed domain name resolves. However, in the “About Us” section it is claimed that the website is being operated by a Swedish company called “Axpo Capital Finance Ltd”. In fact such company does not exist and the company number for it belongs to an unrelated company. Moreover, the personal-named Respondent has an address in Nigeria which does not match the (untrue) statement on the Respondent’s website that it is operated by a Swedish-based entity.

The website operated under the disputed domain name appears to be part of a larger fraudulent scheme. One of the claims made on the Respondent’s website, namely “The world’s Latest blockchain-powered online business platform with token investment & grow your business”, is made in many other websites. These websites, all have a similar template in that each of them is cheaply made and encourages Internet users to sign up for a financial service. The Respondent’s website is full of spelling errors and even contains “Lorem Ipsum” placeholder text. The Respondent’s business model is clearly a scam which uses the Complainant’s repute in the field of trading and finance in order to attract Internet users to its website and to profit from the confusion with the Complainant’s business which is thereby created.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Dealing, first, with the Respondent’s failure to file a response to the Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under these Rules, the Panel shall be entitled to draw such inferences from this omission as it considers appropriate.

Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following three elements in order to succeed in its Complaint:

(i) the disputed domain name is identical or confusingly similar to a trade mark 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.

A. Identical or Confusingly Similar

The Complainant has provided details of the many registered trade marks it owns for AXPO. These include the trade mark in respect of which full details have been provided above, which thereby establish its rights in this mark.

As a technical requirement of registration, the Top-Level Domain, that is “.com” in the case of the disputed domain name, is typically disregarded when assessing confusing similarity. The only difference between the Complainant’s AXPO mark and the disputed domain name is the additional word “finance”, which follows the mark. This additional component does not prevent the disputed domain name from being considered confusingly similar to the Complainant’s mark. As explained at section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “Where the relevant trade mark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.”

The Complainant’s AXPO service mark is clearly recognizable within the disputed domain name and the Panel accordingly finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights.

B. Rights or Legitimate Interests

The Panel considers the second and third elements both by reference to the website to which the disputed domain name has previously resolved and the current, inactive, status of the disputed domain name.

Paragraph 4(c) of the Policy sets out circumstances, without limitation, by which a respondent might demonstrate that it has rights or a legitimate interest in a domain name. These are, summarized briefly: if the respondent has been using the domain name in connection with a bona fide offering of goods and services, if the respondent has been commonly known by the domain name, or if the respondent has been making a legitimate noncommercial or fair use of the domain name.

The circumstances indicate that, whilst its website has been active, the Respondent has been seeking to attract visitors to it who are likely to assume, from the confusing similarity between the disputed domain name and the Complainant’s AXPO mark as well as the “Axpo Finance” branding on the website, that it has some form of association with the Complainant. By so doing, the Respondent is evidently hoping to increase interest from visitors to its website as to its purported activities in the field of crypto-currencies. In fact, irrespective almost of the specific content of the website to which the disputed name resolves, exploiting the Complainant’s repute in its mark in this manner cannot comprise a bona fide offering of goods and services. Moreover, the fact that the Respondent’s website purports to be operated by a fictitious entity called “Axpo Capital Finance Ltd” confirms its dishonest intent. Section 2.13.1 of the WIPO Overview 3.0 explains that “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent”.

The second circumstance can be dealt with briefly; there is no evidence that the Respondent has been commonly known by the disputed domain name. The third circumstance is also inapplicable; the Respondent’s website is commercial in character and the composition of the disputed domain name is such that it carries a high risk of implied affiliation with the Complainant, which prevents its use from being considered fair; see section 2.5.1 of the WIPO Overview 3.0.

When considering the second element by reference to the disputed domain name’s presently inactive status, the finding is the same. The mere holding of the disputed domain name comprises neither a bona fide offering or goods and services (see Skyscanner Limited v. WhoisGuard Protected, WhoisGuard, Inc. / petrov petya, WIPO Case No. DCC2020-0003), nor a legitimate noncommercial, nor a fair use, of it.

Once a complainant has made out a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent; see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. In the absence of any response from the Respondent to the Complaint, it has failed to satisfy that burden. The Panel therefore finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The confusing similarity between the disputed domain name and the Complainant’s AXPO mark coupled with the use to which the Respondent has put the disputed domain name following registration indicates, on at least a balance of probabilities, that the Respondent was aware of the Complainant’s mark as the date of registration of the disputed domain name and registered it in order thereby to obtain some form of illegitimate advantage. As explained by the panel in Costco Wholesale Membership Inc. and Costco Wholesale Corporation v. Almantas Kakareka and Hostmaster Oneandone, 1&1 Internet, Inc., WIPO Case No. D2007-1833; “Substantial authority exists to the effect that registration of a domain name that is confusingly similar to a famous trade mark by any entity that has no relationship to that mark is itself sufficient evidence of bad faith registration and use”. The Panel therefore finds the Respondent’s registration of the disputed domain name to have been in bad faith.

Paragraph 4(b) of the Policy sets out, without limitation, circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The circumstance set out in paragraph 4(b)(iv) of the Policy is if a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.

The use to which the Respondent has put the disputed domain name falls within these circumstances in that Respondent is using the confusing similarity between the disputed domain name and the Complainant’s mark in order to attract Internet users to its website so that it can then attempt to solicit their interest in crypto-currencies. The fact that the same wording which seeks to do so can be found in many other partially developed websites affirms that no good faith activity is being conducted via the Respondent’s website and points to dishonest intent on the part of the Respondent. As explained at section 3.1.4 of the WIPO Overview 3.0; “As noted in section 2.13.1, given that the use of a domain name for per se illegitimate activity such as the sale of counterfeit goods or phishing can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith”. See Hanai Capital, LLC v. Domain Administrator, See PrivacyGuardian.org / Nike Nolan, WIPO Case No. D2020-0846 and also, in very similar circumstances, Accenture Global Services Limited v. Steffen Bartsch/crypto earn, WIPO Case No. D2021-0505.

The current inactive status of the disputed domain name comprises passive holding of it by the Respondent. Section 3.3 of the WIPO Overview 3.0 explains that: “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”

Applying these factors, briefly, to the current circumstances; (i) the Complainant’s AXPO mark is inherently distinctive, was first registered over 20 years ago and is in widespread use; (ii) the Respondent has not responded to the Complaint; (iii) the Respondent has sought to conceal its identity through use of a privacy services; and (iv) it is not possible to think of any good faith use to which the disputed domain name could be put.

For the above reasons, the Panel finds that the disputed domain name was both registered and is being used in bad faith.

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 <axpofinance.com> be transferred to the Complainant.

Antony Gold
Sole Panelist
Date: October 6, 2021

¹ As outlined at section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision. The Panel has accordingly attempted to visit the website to which the disputed domain name has previously resolved and has established that it is presently inactive.