WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sergey L Cherepanov v. Domain Admin, Whois Privacy Corp.
Case No. D2017-1926
1. The Parties
The Complainant is Sergey L Cherepanov of Irkutsk, Russian Federation, represented by Berlin Evgeny, Russian Federation.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name, <motorka.org> (the "Domain Name"), is registered with Internet Domain Service BS Corp (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 29, 2017. On October 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 3, 2017, 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 proceedings commenced on October 16, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 5, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 7, 2017.
The Center appointed Tony Willoughby as the sole panelist in this matter on November 21, 2017. 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.
Having read the case file the Panel sought from the Complainant by way of Procedural Order No. 1 dated November 28, 2017, documentary support for his contention that he was the registrant of the Domain Name prior to the asserted theft in May 2017. On November 30, 2017, the Complainant provided the documentary support requested. The Respondent was given an opportunity to file a further submission in response, but did not avail itself of that opportunity.
4. Factual Background
The Complainant's unchallenged evidence, supported by annexes to the Complaint and the Complainant's response to Procedural Order No. 1, is that the Complainant registered the Domain Name on July 25, 2008, and made continuous commercial use of it up to May 18, 2017, when the registration was stolen from him by the Respondent (or the individual using the Respondent as a privacy shield), who had hacked into the previous registrar's database. The Respondent obtained access to the website database and the website files by presenting to the Complainant's webhost a forged copy of the Complainant's passport and was thus able to download a working copy of the Complainant's website and connected it to the Domain Name.
"Motorka" is a transliteration of the Russian word for motorboat. The Complainant used the site for information relating to motor boats and for the posting of advertising links and, since the theft, has acquired a new domain name (<motorkaorg.ru>), which it is using for the same purpose.
5. Parties' Contentions
The Complainant contends that the Domain Name is identical to MOTORKA.ORG in respect of which it claims unregistered trade mark rights. It contends that the Respondent has no rights or legitimate interest in respect of the Domain Name, which it stole from the Complainant. The Complainant further contends that the Domain Name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, that:
(i) The 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 Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
B. Identical or Confusingly Similar
The Complainant has no relevant registered trade mark rights. However, the Panel is satisfied on the evidence supplied by the Complainant that the extensive commercial use made of the Domain Name by the Complainant over the seven years prior to May 18, 2017, is sufficient, for the purposes of this decision, to have given the Complainant unregistered rights in respect of the term MOTORKA.ORG. It is to be observed that the Respondent has challenged neither the Complainant's evidence, nor the Complainant's claim to unregistered trade mark rights in respect of the term MOTORKA.ORG. Indeed, if it were not the case that the Complainant had built up a significant reputation and goodwill in respect of the Domain Name and the website to which it was connected, the Respondent (or the individual using the Respondent as a privacy shield) would not have found it worthwhile going to the trouble of unlawfully transferring the Domain Name to itself.
The Panel finds the Domain Name is identical to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The Complainant has demonstrated to the satisfaction of the Panel that the Respondent (or the individual using the Respondent as a privacy shield) acquired the Domain Name from the Complainant by fraud. On no basis can behavior of that kind be said to have given to the Respondent any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
By the same reasoning the Panel finds that the manner in which the Respondent (or the individual using the Respondent as a privacy shield) acquired the Domain Name and has been using it to replicate the Complainant's website (see section 4 above) constitutes registration and use in bad faith within the meaning of 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 Domain Name, <motorka.org>, be transferred to the Complainant.
Date: December 14, 2017