WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arcelormittal S.A. v. Div Ko
Case No. D2016-0930
1. The Parties
The Complainant is Arcelormittal S.A. of Luxembourg, represented by Nameshield, France.
The Respondent is Div Ko of Madrid, Spain.
2. The Domain Name and Registrar
The disputed domain name <arcleormittal.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 10, 2016. On May 10, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 11, 2016, 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 proceeding commenced on May 13, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 2, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 3, 2016.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on June 8, 2016. 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 large multinational industrial corporation producing and distributing steel. The Complainant states that it is the largest steel producing company in the world.
The Complainant asserts that it is the owner of several registered trademarks for the company name "Arcelormittal", and submits evidence of a European Union and an International trademark for ARCELORMITTAL, both registered on August 3, 2007. The Complainant also asserts and submits evidence that it owns numerous domain names which include the wording of its ARCELORMITTAL trademark, including <arcelormittal.com> and <arcelormittal.es>.
The disputed domain name was registered on April 17, 2016.
The Respondent is apparently an individual registrant in Spain. The disputed domain name does not resolve to an active website.
5. Parties' Contentions
In addition to the information in the Factual Background, above, and the points in the Findings and Discussion, below, the Complainant asserts that this matter involves an evident case of "typosquatting", and that it is evident that the Respondent, in registering the disputed domain name, was in bad faith seeking to create a confusing similarity between the disputed domain name and the Complainant's well-known trademarks in which the Respondent has no rights.
On April 22, 2016, the Complainant sent a cease and desist letter to the Respondent demanding that, unless the Respondent could demonstrate rights in the disputed domain name, that it be transferred to the Complainant, but received no answer.
The Complainant asserts that all requisite elements of paragraph 4(a) of the Policy are satisfied and asks that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name reproduces the entirety of the Complainant's distinctive trademark and company name, except for an inversion of the letters "e" and "l" in the word "arcelor". This, the Complainant asserts, is an obvious misspelling of the Complainant's trademark and a clear case of "typosquatting".
It has long been established that a slight misspelling as between the disputed domain name and the trademark on which rights are asserted may not remove the confusing similarity between the two. See, Estée Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna, WIPO Case No. D2000-0869; Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971. The disputed domain name in the instant case contains a slight and obvious misspelling of the Complainant's trademark, but the misspelled trademark remains the dominant and principal component of the disputed domain name. The disputed domain name is accordingly confusingly similar to the Complainant's trademark.
The first element of paragraph 4(a) of the Policy is accordingly proven.
B. Rights or Legitimate Interests
It is well established that a complainant needs to establish at least a prima facie case that the respondent has no rights or legitimate interests in respect of the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. Once such a prima facie case is made, the burden shifts to the respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. See also, Meizu Technology Co., Ltd. v. "osama bin laden", WIPO Case No. DCO2014-0002; H & M Hennes & Mauritz AB v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo, WIPO Case No. D2014-0225.
In the instant case the Complainant has clearly asserted that it has never given any permission or license to the Respondent to use its trademarks in the disputed domain name or otherwise, and that it has no knowledge or belief of any rights or legitimate interests of the Respondent in the disputed domain name. Furthermore, there is no evidence or indicia in the file of this case that would suggest that the Respondent is known by the disputed domain name or has rights or legitimate interests in it.
The Respondent having failed to answer the Complaint, the Complainant has accordingly met its burden under paragraph 4(a)(ii) of the Policy
C. Registered and Used in Bad Faith
The disputed domain name was registered in 2016, long after the Complainant's trademarks and similarly named domain names were registered, and when the Complainant had for many years been a widely and internationally-known company known by the name "Arcelormittal". It is not plausible that the disputed domain name was registered without knowledge of the Complainant's name and identity, and the likelihood that it was trademarked. The slight and obvious misspelling of the Complainant's mark in the disputed domain name does little or nothing to diminish the bad faith inherent in its registration, and logically reflects a knowledge of the Complainants' rights in the mark, and an intention to register a confusingly similar domain name. In sum the disputed domain name is found to have been registered in bad faith.
The disputed domain name was quite recently registered and has, according to the Complaint, not yet been actively used. It has long been established that the passive holding of a domain name may under certain circumstances, constitute bad faith "use" within the meaning of paragraph 4 (a) of the Policy. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 3.2, summarizes the pertinent jurisprudence as follows:
"With comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant's concealment of its identity. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa."
Viewing all the circumstances of this matter the Panel is convinced that Respondent's passive holding is here constitutive of bad faith use. The Complainant's trademark and name are very widely known, and it is appropriate to draw a strong inference of bad faith from the registration of the disputed domain name. There are no circumstances or inferences that could imply any good faith or legitimate use by the Respondent in connection with its registration of the disputed domain name. The Respondent's failure to respond to a cease and desist letter and its failure to answer the Complaint are, in the circumstances here present, further indicia of bad faith.
The Complainant has, accordingly, also satisfied its burden under paragraph 4 (a)(iii) of the Policy.
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 <arcleormittal.com> be transferred to the Complainant.
Date: June 10, 2016