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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Leaseweb IP B.V. v. WPS, Ltd. / Timothy Burr, Elit’Avia d.o.o.

Case No. D2016-1486

1. The Parties

The Complainant is Leaseweb IP B.V. of Amsterdam, the Netherlands, represented by Boekx Advocaten, the Netherlands.

The Respondents are WPS, Ltd. of Swatar, Malta (the “First Respondent”), internally represented / Timothy Burr, Elit’Avia d.o.o.of Anchorage, Canada (the “Second Respondent”).

2. The Domain Name and Registrar

The disputed domain name <evoswltch.com> is registered with united-domains AG (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 22, 2016. On July 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 25, 2016, 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 July 26, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed amendments to the Complaint on July 26, 2016 and August 2, 2016.

The Center verified that the Complaint together with the amendments to 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 Respondents of the Complaint, and the proceedings commenced on August 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 23, 2016. The First Respondent submitted an informal communication on August 8, 2016, but no formal Response. The Second Respondent did not respond in any manner.

The Complainant submitted a Supplemental Filing on August 23, 2016.

The Center appointed Steven A. Maier as the sole panelist in this matter on August 25, 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. Identity of Respondent

The First Respondent states that it operates a privacy protection service. It submits that the underlying registrant is in full control of any domain name it registers and that it promptly reveals underlying registrant details when UDRP proceedings are initiated. It also submits that its customers warrant that they will not use the registration to violate the rights of any third party. In these circumstances, the First Respondent applies to be removed as a Respondent to this proceeding.

The Complainant opposes the First Respondent’s application. It submits that the First Respondent is a proper Respondent to this proceeding because it is the party that registered the disputed domain name.

Under paragraph 1 of the Rules:

“Respondent means the holder of a domain -name registration against which a complaint is initiated.”

In the view of the Panel, the First Respondent falls properly within this definition, despite having identified the Second Respondent as the underlying registrant after the Complaint was initiated. However, the Panel does not consider that the First and Second Respondents should be treated as one and the same: the analysis of the case will inevitably have regard to the Respondents’ knowledge and intention, which should not necessarily be deemed to be identical in the case of two separate entities. Some panels have found that a privacy protection service should be bound by the knowledge (and presumably intention) of the underlying registrant because, as a general principle of law, the knowledge of a principal is imputed to its agent. In the view of this Panel, however, while the knowledge of an agent is generally imputed to a principal, the reverse is not necessarily true and should not be universally applicable in every case under the UDRP, particularly where considerations of bad faith (i.e. dishonesty) are involved. Equally, however, the Panel is not of the view that a privacy protection service, which allows its name to be used to shield the true identity of a registrant, can expect to escape entirely the consequences of an adverse finding under the UDRP.

In the circumstances, the Panel concludes that both the First Respondent and Second Respondent are proper Respondents to this proceeding. However, the Panel will make clear below those of its findings that are attributable to the Second Respondent alone as the underlying registrant of the disputed domain name.

5. Factual Background

The Complainant is a company incorporated in the Netherlands. It is an Internet service provider which trades under the name and trademark EVOSWITCH.

Ocom IP B.V. is the owner of European Union Trade Mark (“EUTM”) number 005200498 for the word mark EVOSWITCH, registered on October 15, 2009 in Classes 9, 16, 35, 36, 37, 38 and 42.

The disputed domain name was registered on July 18, 2016.

6. Parties’ Contentions

A. Complainant

The Complainant submits that its name and trademark EVOSWITCH are widely known owing to its significant presence in Europe, Asia and the United States of America (“United States”). It states that it employs over 300 people and has a social media presence on sites including Facebook, Twitter and LinkedIn. It states that it has owned the domain name <evoswitch.com> since December 2005 (although that domain name is in fact registered to Ocom IP B.V.).

The Complainant submits that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights. In particular, the Complainant submits that the disputed domain name differs from the Complainant’s trademark only by the substitution of the letter “l” for the “I” and that “l” is in fact a capitalized form of “i”.

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name has been registered and is being used in bad faith. In particular, the Complainant alleges that on July 19, 2016 the disputed domain name was used to send an email from “[name of CEO]@evoswltch.com” to the Complainant’s accounts department stating:

“Hi Bart, I need you to process a payment for me. Please confirm you are available so I send you the instruction. Regards, […], Managing Director EvoSwitch Companies.”

The Complainant submits that the Second Respondent has used the disputed domain name to impersonate the Complainant’s managing director in an attempt fraudulently to receive payments from the Complainant’s accounts department.

The Complainant requests a transfer of the disputed domain name to the Complainant.

B. Respondent

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

7. Discussion and Findings

In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:

(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) that the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant relies on the EUTM EVOSWITCH and the domain <evoswitch.com> both of which are registered to Ocom IP B.V. While the Complainant submits that it is part of “the OCOM Group” it makes no specific reference to Ocom IP B.V. nor does it describe any arrangements by which it may be licensed by Ocom IP B.V. to use the EUTM and domain name referred to above. The Complainant is deficient in this regard, but while the Panel has considered making an appropriate Procedural Order, it has visited Ocom IP B.V.’s website where its association with the Complainant is disclosed appropriately. In the particular circumstances of this uncontested case the Panel finds that it is reasonable to infer from its own research and the Complainant’s submissions that it is validly authorized to use the EUTM and domain name in question.

The Complainant has, therefore, established that it has rights in the European Union Trade Mark EVOSWITCH referred to above. The disputed domain name is identical to the trademark, save that the letter “i” is replaced by the letter “l”. This difference does not distinguish the disputed domain name from the trademark and the Panel therefore finds that that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

In the view of the Panel, the Complainant’s submissions referred to above give rise to a prima facie case for the Respondents to answer that they have no rights or legitimate interests in respect of the disputed domain name. However, the Second Respondent has not participated in this administrative proceeding and has not provided any explanation for its registration or its use of the disputed domain name, whether in accordance with any of the criteria set out in paragraph 4(c) of the Policy or otherwise. Having no other evidence of any rights or legitimate interests on the Respondents’ part, the Panel concludes that the Respondents have no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The Panel can conceive of no purpose to the Second Respondent’s registration of the disputed domain name other than to impersonate the Complainant by representing its trademark in the disputed domain name subject to a single typographical error. The Panel therefore infers that the Second Respondent registered the disputed domain name with the dishonest intention of falsely representing that the disputed domain name was owned, operated or authorized by the Complainant. The Panel also accepts the Complainant’s (uncontradicted) evidence that the Second Respondent has used the disputed domain name for the purposes of an attempted email fraud (colloquially known as a “CEO fraud”) which was intended directly to defraud the Complainant. The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.

8. 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 <evoswltch.com> be transferred to the Complainant.

Steven A. Maier
Sole Panelist
Date: September 6, 2016

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