WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Commissioners for HM Revenue and Customs v. Tyrone Jackson
Case No. D2018-0298
1. The Parties
1.1 The Complainant is The Commissioners for HM Revenue and Customs of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Demys Limited, United Kingdom.
1.2 The Respondent is Tyrone Jackson of London, United Kingdom.
2. The Domain Name and Registrar
2.1 The disputed domain name <hmrc-taxrefund.com> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 9, 2018. On February 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 12, 2018, 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.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 21, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 13, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 22, 2018.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on March 29, 2018. 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
4.1 The Complainant is a non-ministerial department of the United Kingdom Government responsible for the collection of taxes, the payment of some forms of state support and the administration of other regulatory regimes. The Complainant in its present form was created by the merger of the Inland Revenue and HM Customs and Excise in April 2005. It has since that date been commonly known as the HMRC, which is the acronym for Her Majesty’s Customs and Excise.
4.2 Although its website is operated from the Url “https://www.gov.uk/government/organisations/hm-revenue-customs”, it also uses the domain name <hmrc.gov.uk>. Like many other governmental tax authorities, it and those who deal with it (which include almost every United Kingdom individual and business) have been extensively targeted by those engaging in phishing and other online scams. Domain names that incorporate the term HMRC and words or phrases associated with repayment or refund have often been used for these purposes (for example, being used for emails falsely purporting to come from the Complainant).
4.3 The Complainant is the proprietor of the United Kingdom registered trade mark number 2471470 for the word HMRC in classes 9, 16, 25, 26, 35, 36, 38, 41, 42 & 45. The mark has a filing date of November 5, 2007 and a registration date of March 28, 2008.
4.4 The Domain Name was registered on June 6, 2017. The publically available WhoIs details for the Domain Name suggest that the Respondent is an individual in London and the address used appears to be genuine. But whether a real individual exists under the name is not certain.
4.5 The Complainant’s agent wrote to the Respondent by letter on January 25 2018, requesting an explanation for the registration of the domain name and threating UDRP proceedings or litigation. No response to that letter was forthcoming.
4.6 Since registration the Domain Name has not been used for any active website. Since registration or at least since January 2018 it has resolved to a parking page that displays the text “This domain is parked free, courtesy of Domains4Bitcoins.com”. That webpage continues to be displayed from the Domain Name as at the date of this decision.
5. Parties’ Contentions
5.1 In its Complaint, the Complainant gives a description of its activities and registered trade marks. It also claims common law trade mark rights in HMRC. It also exhibits a bundle of United Kingdom press reports in relation to various phishing and other online scams undertaken through the use emails falsely claiming to come from the Complainant,
5.2 The Complainant contends that the Domain Name is confusingly similar to its trade mark. It contends that the words “tax refund” in the Domain Name are words that are likely to be closely associated with the Complainant in the minds of the public. It also contends that the Domain Name is very similar to the domain name <hmrctax-refunds.com>, the subject of the decision in The Commissioners for HM Revenue and Customs v. Domain Admin, Whois Privacy Corp., WIPO Case No. D2017-0545, where there was a finding of confusing similarity.
5.3 The Complainant also contends that the Respondent has no rights or legitimate interests in the Domain Name. It claims that none of the examples of rights or legitimate interests set out in the Policy apply in this case. It also relies upon the decision in Microsoft Corporation v. Charilaos Chrisochoou, WIPO Case No. D2004-0186, in support of the contention that mere passive holding does not provide a right or legitimate interest.
5.4 So far as bad faith registration and use of the Domain Name is concerned, the Complainant claims that it is inconceivable that the Respondent was not aware of the Complainant at the time the Domain Name was registered. Also, although the Complainant is unable to provide direct evidence of fraudulent use of the Domain Name, it submits that the Domain Name:
“features characteristics typical of a domain name that has been or is being used for phishing emails or other fraudulent use, as outlined in the introduction above, and that it is reasonable to infer in the absence of evidence to the contrary, that it is more likely than not that fraud or other illegitimate use was the purpose for which the disputed domain name was registered.”
5.5 In any event, the Complainant maintains that it cannot conceive of a reasonable legitimate use of the Domain Name. In this respect it points out that the Domain Name does not feature any clarifying words which make clear the relationship (or non-relationship) between the Complainant and the Respondent.
5.6 The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent the Panel from determining the dispute based upon the Complaint, notwithstanding the failure of any Respondent to lodge a Response.
6.2 To succeed in these proceedings the Complainant must make out its case in all respects under 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(b) 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”.
A. Identical or Confusingly Similar
6.4 The Panel accepts that the Complainant has both registered and unregistered trade mark rights in the word mark HMRC. It also accepts that the Domain Name can only sensibly be read as a reference to HMRC and the words “tax refund” in combination with the “.com” Top-Level Domain. It further accepts that the words “tax refund” are likely to be closely associated with the Complainant in the minds of at least the United Kingdom public. It follows that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. The Complainant has, therefore, made out the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
6.5 For the reasons that are set out in detail in the part of this decision that deals with bad faith, the Panel has concluded that it is more likely than not that the Domain Name was registered and has been held with some phishing or other scam purpose in mind. There is no right or legitimate interest in holding a domain name for such a purpose.
6.6 Further and in any event the Panel holds that the Complainant has credibly asserted that none of the examples of rights or legitimate interest set out in the Policy apply and there is no evidence or argument before the Panel to the contrary.
6.7 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
6.8 In broad terms the Panel accepts the contentions of the Complainant in this case. It strikes the Panel as more likely than not that the Domain Name has been registered for some fraudulent purpose. In reaching this conclusion the Panel is aware that the Complainant admits that it is unable to provide any direct evidence of such fraudulent use and an allegation of such dishonest intent is a serious one. It also bears in mind its own comments in Total S.A. v. Gustavo Cerda, WIPO Case No. D2011-2073:
“In all cases under the Policy a complainant must prove its case on the balance of probabilities. The test is no different when fraud or dishonesty is alleged. However, as many legal systems have recognised, the more serious the allegation, the less likely it is to be true and therefore the more cogent the evidence must be before the balance of probabilities test is satisfied.”
6.9 Nevertheless, the Complainant has sufficiently demonstrated that domain names very similar in form to that of the Domain Name have been used in the past for such dishonest purposes and that the obvious inference is that the Domain Name was also registered for a similar purpose.
6.10 The Panel also believes that this is a case where the failure to respond to the Complainant’s letter before action or to file a Response are factors that support such a finding. So far as failure to file a response is concerned, it is for a complainant to prove its case and there may be good reasons why an honest respondent may decide not to prepare and file such a document. The respondent may, for example, consider the domain name to be of insufficient value to justify actively resisting the proceedings. But where allegations are made which are as serious as those levied by the Complainant in the Complaint, one would expect any honest respondent to positively deny those allegations. In the opinion of the Panel, the fact that the Respondent did not do so, is something that is relevant.1
6.11 Further, even if there was no such dishonest intent, the Panel finds that the Domain Name is still likely to have been both registered and used in bad faith. In this respect the Panel agrees that it is difficult to see what legitimate use could be made of the Domain Name. It accepts in this respect that the fact that the Domain Name does not feature any clarifying words which make clear the relationship (or non-relationship) between the Complainant and the Respondent, is significant (as to the relevance of which, see the analysis in Johnson & Johnson v. Ebubekir Ozdogan WIPO Case No. D2015-1031).
6.12 The Complainant has, therefore, made out the requirements of paragraph 4(a)(iii) of the Policy.
7.1 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, <hmrc-taxrefund.com> be transferred to the Complainant.
Matthew S. Harris
Date: April 6, 2018
1 In this respect the Panel notes from the case file, that the Center was unable to deliver an email to the “postmaster” email address for the Domain Name, but that there is nothing in the case file that indicates that the Center was unable to deliver a copy of the Complaint to the contact email address appearing in the WhoIs details for the Domain Name.