1.1 The Complainant is Vestey Group Limited, of London, the United Kingdom of Great Britain and Northern Ireland.
1.2 The Respondent is “George Collins”, giving a false address in London, the United Kingdom of Great Britain and Northern Ireland.
2.1 The disputed domain name <vesteygroup.com> (the “Domain Name”) is registered with eNom (the “Registrar”).
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2008. On August 28, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name at issue. On August 28, 2008, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing contact details recorded on the Registrar's WhoIs Database. For reasons unknown to the Panel, the Registrar failed to provide billing contact details as required by paragraph 2(a)(i)(B) of the Uniform Domain Name Dispute Resolution Policy (the “Policy”).
3.2 The Center verified that the Complaint satisfied the formal requirements of the Policy, 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”).
3.3 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 6, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 8, 2008.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on October 16, 2008. 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.
4.1 The Complainant is part of the Vestey Foods Group. This group comprises twelve food companies specialising in the import, storage and distribution of a wide variety of foodstuffs.
4.2 The Complainant is the owner of a number of trade mark registrations or trade mark applications in which the word “Vestey” features. They include:
(i) United Kingdom Registered Trade Mark No, 2472158 for the words “Vestey Foods” in classes 29, 30 and 31 with a publication date of February 1, 2008; and
(ii) United Kingdom Registered Trade Mark 1398301 in classes 29, 30, 31, 36, 37, 39, 42 dated September 1 1989 in the following form:
This mark is subject to the disclaimer that the mark “shall give no right to the exclusive use of the word ‘Group”
4.3 The Complainant is also the owner of the domain name <vestey.com> and various other domain names incorporating the term “vesteyfoods” in numerous ccTLDs.
4.4 Very little is known about the Respondent. The Domain Name was registered on June 9, 2008 in the name of “Gorge Collins”, although it seems likely that this is not the Registrant's real name. The Respondent also gave a false address for itself, using the Complainant's own address in London.
4.5 The contact telephone number given in relation to the Domain Name was +44 (0)1273 78 2859 but this is not an active number. Further, the Respondent used the email address “email@example.com”.
4.6 Since the date of registration, or shortly thereafter, the Domain Name has been used for a website that is a “cloned” copy of the Complainant's main corporate website at www.vestyfoods.com. For the most part, the website operating from the Domain Name is identical to that of the Complainant, but on the contact page, the real email address and telephone numbers of the Complainant have been replaced with the following:
Tel: +44 127 378 2859
Fax: +44 127 337 6924
4.7 It would appear that the individual or individuals behind the Domain Name and the website operating from the Domain Name are impersonating the Complainant as part of some broader fraud or deception upon the public. The Complainant has received emails from individuals in Spain who claimed to have been offered employment with the Complainant. In fact it was the Respondent or its associates that has made these offers. The Spanish individuals had then been asked to sign up to a false online employment contract and to provide certain personal information, including bank account and passport details.
4.8 The fraudulent website operating from the Domain Name is hosted by the Russian company “V-Line Telecom”. On being contacted by the Complainant, V-line stated that the website had been “ordered” by an individual called Ms. Romanova Anastasia1 and provided a telephone number for this individual that turned out to be false.
4.9 The website still continues to operate at the date of this decision.
5.1 The Complainant refers to its registered trade marks. It also claims unregistered trade marks in various parts of the world in the words “Vestey” and “Vestey Group”. The Complainant contends that the Domain Name is identical or confusingly similar to these claimed trade marks.
5.2 The Complainant refers to the fraudulent activities of the persons using the Domain Name and the website that operates from it. It contends that there is no evidence to suggest that the Respondent has any right or legitimate interest in the Domain Name. The use being made of the Domain Name is also said to show that the Domain Name has been registered and used in bad faith.
5.3 The Respondent did not reply to the Complainant's contentions.
6.1 There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in paragraph 4(a) of the Policy. Namely the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
6.4 The Panel accepts that the Domain Name can only be sensibly understood as a combination of the words “vestey” and “group”. As has already been described, the Complainant is the owner of a United Kingdom registered trade mark for the words “Vestey Foods”. The most distinctive element of both the domain name and this registered trade mark is the term “vestey”. In the circumstances, the Panel has little hesitation in concluding that the Domain Name is confusingly similar to this registered trade mark.
6.5 The Complainant is also the owner of a United Kingdom registered mark that combines the words “The Vestey Group” with an animal head design. The fact that a mark comprises a non-textual element is something that a panel can take into account when assessing confusing similarity. However, in this case the textual element is a prominent part of the overall mark. Further, the text is very similar to the text of the Domain Name, the only difference being the omission of the definite article and the addition of the TLD “.com” suffix in the Domain Name. This trade mark disclaims any rights in the exclusive use of the word “Group”, but the word is not being used alone in the Domain Name. The word “Group” is being used in combination with the name “Vestey”. In the circumstances, the Panel concludes that the Domain Name is also confusingly similar to this registered trade mark.
6.6 Given these findings, it is not necessary to consider the Complainant's claims of unregistered trade mark rights. The Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.
6.7 In this case the issues of rights or legitimate interests and registration and use in bad faith are straightforward and can be considered together.
6.8 As has already been described, the Panel accepts that the Domain Name is being, and at all relevant times has been, used without the Complainant's consent by an entity or entities unknown as part of a broader scheme to falsely impersonate the Complainant. That impersonation has been with a view to the furtherance of some fraud or deception upon the public. Such activities do not provide rights or legitimate interests in a domain name. It is also hard to conceive of a more obvious example of bad faith registration and use.
6.9 In the circumstances, the Panel finds that the Complainant has made out the requirements of paragraphs 4(a)(ii) and 4(a)(iii) of the Policy.
6.10 The Panel would also add that it is disturbed to note that the Respondent's website is still operating from the Domain Name as at the date of this decision. The sooner this decision proceeds to implementation and the website ceases to operate the better.
7.1 For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <vesteygroup.com> be transferred to the Complainant.
Matthew S. Harris
Dated: October 21, 2008
1 Those familiar with Russian history will recognise “Anastasia Romanova” as the name of the youngest daughter of the Tsar Nicholas II of Russia. She was murdered in Yekaterinburg in July 1918 together with other members of the Romonov family by the Bolshevik secret police. However, persistent rumours of her possible escape circulated after her death.