WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Temenos Headquarters SA v. Contact Privacy Inc. Customer 1242156699 / Philander Grabbe, Temenos Group AG
Case No. D2018-1057
1. The Parties
1.1 The Complainant is Temenos Headquarters SA of Geneva, Switzerland, represented by Mentha Avocats, Switzerland.
1.2 The Respondent is Contact Privacy Inc. Customer 1242156699 of Toronto, Ontario, Canada / Philander Grabbe, Temenos Group AG of Philadelphia, Pennsylvania, United States of America ("United States").
2. The Domain Name and Registrar
2.1 The disputed domain name <temenos-group.com> (the "Domain Name") is registered with Google Inc. (the "Registrar").
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 14, 2018. At the time or shortly before the Complaint was filed, the publically available WhoIs data for the Domain Name recorded the registrant as the Registrar's "privacy service". On May 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 14, 2018, the Registrar transmitted by email to the Center its verification response disclosing the details of and contact information for the person recorded as the underlying registrant for the Domain Name. Unless the contrary is apparent from the context, references to the Respondent hereinafter in this decision are references to that underlying registrant (although as is referred to below, whether the details for that underlying registration are accurate is questionable). The Center sent an email communication to the Complainant on May 15, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 18, 2018.
3.2 The Center verified that the Complaint together with the amended 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 May 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 13, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 14, 2018.
3.4 The Center appointed Matthew Harris as the sole panelist in this matter on June 20, 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 company incorporated in Switzerland and is the main operating company of the Temenos Group AG. It is a banking and financial software provider and the fourth largest software company in Europe.
4.2 The Complainant is the owner of International Trademark No. 1328325 dated September 2, 2016 in classes 9, 16, 35, 36, 41 and 42 and designating various territories for the word mark TEMENOS. The mark has proceeded to registration in at least the European Union and China.
4.3 The Respondent prima facie appears to be an individual based in the United States. However, given the way that the Domain Name has been used, it is questionable whether an individual with that name exists, or if he does whether he is actually responsible for the registration.
4.4 The Domain Name was registered on January 18, 2018. Since that date the Domain Name has been used as part of an email address which has been used in connection with a fraudulent scheme whereby false advertisements for jobs with the Complainant have been advertised and then the email used to obtain personal information from applicants for these non-existent jobs. No website operates from the Domain Name.
4.5 The Complainant contacted the Registrar's privacy service by letter to inform it of this fraudulent activity on February 16, 2018, but received no response to that letter.
5. Parties' Contentions
5.1 The Complainant refers to its business and international trademark and the fraudulent use of the Domain Name. It contends that the Domain Name involves a reference to a company in the Complainant's group; i.e. Temenos Group AG. It also contends that although the term "temenos" has a classical Greek origin, it has no significance other than as a reference to the Complainant's group of companies. It, therefore, claims that the Domain Name is confusingly similar to its trademark.
5.2 The Complainant further contends that the use made of the Domain Name demonstrates that the Respondent has no rights or legitimate interest in the Domain Name and that the Domain Name has been registered and used in bad faith
5.3 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 trademark 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 are 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 only sensible reading of the Domain Name is as the terms "temenos" and "group" in combination with the generic Top-Level Domain ("TLD") ".com" and that the Complainant has trademark rights in TEMENOS. Given this the Domain Name is clearly confusingly similar (as that term is understood under the Policy) to a trademark in which the Complainant has rights,
6.5 It follows that the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy
B. Rights or Legitimate Interests and Registered and Used in Bad Faith
6.6 Although the usual practice of UDRP panels is to consider the issues of rights or legitimate interests and bad faith separately, this is a case where it is both more convenient to consider them together. The Complainant's contention is ultimately a straight forward one. It contends that the Domain Name was registered and has been used as part of a scheme to impersonate the Complainant's business with a view to the furtherance of some form of fraud involving fake advertisements for nonexistent jobs with either the Complainant or some other company within the Complainant's Group.
6.7 Such activity cannot provide a right or legitimate interest in the Domain Names and is positive evidence of a lack of that right or interest. Further, the registration and use of a domain name for such a purpose are clear examples of bad faith registration and use. See in this respect, for example, Total S.A. v. Gustavo Cerda, WIPO Case No. D2011-2073.
6.8 The Panel accepts that the Complainant's claims are correct. First, the most natural reading of the Domain Name is as a reference to the Complainant's Group of companies and therefore inherently impersonates the Complainant. Second, the Complainant has brought forward evidence in the form of emails to substantiate its claim that the Domain Name is being used in an email address to fraudulently impersonate it in connection with fake job advertisements.
6.9 In the circumstances, the Complainant has made out the requirements of paragraphs 4(a)(ii) and (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, <temenos-group.com> be transferred to the Complainant.
Date: June 26, 2018