WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nordpay Financial Limited v. Morgan Nguyen
Case No. D2015-0111
1. The Parties
Complainant is Nordpay Financial Limited of London, the United Kingdom of Great Britain and Northern Ireland, represented by Alain Bensoussan SELAS, France.
Respondent is Morgan Nguyen of Rumilly, France.
2. The Domain Name and Registrar
The disputed domain name <paysite.cash> (the "Domain Name") is registered with 1&1 Internet AG (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 23, 2015. On January 23, 2015, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On January 23, 2015, the Registrar transmitted by e-mail to the Center its verification response confirming that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 3, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was February 23, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 24, 2015.
The Center appointed Robert A. Badgley as the sole panelist in this matter on March 9, 2015. 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
Complainant is in the business of offering online payment services. Complainant holds a trademark, registered in France (Respondent's country) on December 29, 2011, for PAYSITE CASH in connection with "financial affairs, monetary affairs, emission of travelers' checks or credit cards."
Respondent registered the Domain Name on September 8, 2014. The Domain Name currently resolves to a website apparently under construction. The site states: Just PAY on our SITE, get MORE CASH. EARN MONEY ONLINE THROUGH CLICKING ADS. Available soon."
On January 18, 2015, Respondent sent Complainant an unsolicited e-mail stating (translated from French) that Respondent is the owner of the Domain Name, and that he intends to put the Domain Name up for auction soon, but wanted to give Complainant the first chance to bid for the Domain Name. That same day, Complainant replied by e-mail, asking what the price for the Domain Name was. Respondent responded later that day, asking for 2,000 Euros. He added that, if no response was received by January 20, 2015, he would put the Domain Name up for auction.
5. Parties' Contentions
Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Name. Complainant asserts that Respondent has no right under European Union law to operate an online payment service, and that, in any event, Respondent admitted during negotiations with Complainant that he had no project in mind for the Domain Name.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each of the Domain Names:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is undisputed in this record that Complainant holds rights in the trademark PAYSITE CASH through registration in France antecedent to Respondent's registration of the Domain Name. If one considers the gTLD ".cash", it is clear that the Domain Name is identical to Complainant's trademark. Even if one ignores the gTLD (which is standard practice when considering gTLDs such as ".com"), the Panel concludes that the Domain Name is confusingly similar to Complainant's trademark.
Accordingly, the Panel concludes that Policy paragraph 4(a)(i) has been satisfied by Complainant.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in a Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Respondent has not responded to the Complaint, and therefore has not sought to explain his bona fides or dispute anything asserted in the Complaint. The Panel finds Complainant's assertion that Respondent admitted he had no plans for the Domain Name (other than to sell it) to be plausible.
Accordingly, the Panel concludes that Policy paragraph 4(a)(ii) has been satisfied by Complainant.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, "in particular but without limitation," are evidence of the registration and use of the Domain Name in "bad faith":
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website or other on line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on Respondent's website or location.
The Panel concludes that it is more likely than not that Respondent had Complainant's PAYSITE CASH trademark in mind when registering the Domain Name. "Paysite" is not a common French dictionary term, and Respondent admittedly had no plans to use the Domain Name for a website. One therefore wonders what motivated Respondent to register this Domain Name, if not for purposes of exploiting Complainant in some manner. It is undisputed that Respondent sent an unsolicited e-mail to Complainant offering to sell the Domain Name to Complainant, and therefore it is reasonable to infer that Respondent had knowledge of Complainant's trademark.
The Panel also concludes that Respondent is in bad faith under Policy paragraph 4(b)(i). It is undisputed that Respondent sought out Complainant to offer to sell the Domain Name at a sizeable markup (2,000 Euros).
Accordingly, the Panel concludes that Policy paragraph 4(a)(iii) has been satisfied by Complainant.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <paysite.cash> be transferred to Complainant.
Robert A. Badgley
Date: March 11, 2015