WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Balfour Beatty plc v. Kelvin Carson
Case No. D2018-1151
1. The Parties
Complainant is Balfour Beatty plc of London, United Kingdom of Great Britain and North Ireland.
Respondent is Kelvin Carson of Johannesburg, Gauteng, South Africa.
2. The Domain Name and Registrar
The disputed domain name <balfourbeartty.com> is registered with Tucows Inc. ("Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("Center") on May 23, 2018. On May 23, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 23, 2018, the Registrar responded by email verifying that Respondent is listed as the registrant and providing contact information and other details of the registration.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 19, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 20, 2018.
The Center appointed Debra J. Stanek as the sole panelist in this matter on July 2, 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
Complainant is the parent company of the Balfour Beatty group, an international infrastructure group providing engineering, construction, and support services, which includes Balfour Beatty Group Limited. Complainant changed its name to Balfour Beatty plc on May 10, 2000. Complainant owns European Union Registration No. 016499832, registered on October 5, 2017, for the mark BALFOUR BEATTY. Complainant also owns the <balfourbeatty.com> domain name, registered on October 21, 1998, as well as other "balfourbeatty" domain names.
The disputed domain name was registered on March 16, 2018 but does not seem to be related to an active site.
5. Parties' Contentions
Identical or Confusingly Similar
Complainant owns European Union Registration No. 016499832, registered on October 5, 2017, for the mark BALFOUR BEATTY as well as owning and using the <balfourbeatty.com> domain name.
The disputed domain name is confusingly similar to the BALFOUR BEATTY mark. It incorporates BALFOUR BEATTY, with the exception of an additional letter, "r". The additional letter does not alter the overall impression of the domain name. In fact, it constitutes "typosquatting."
Rights or Legitimate Interests
Given Complainant's operations since 1909 and the reputation of the BALFOUR BEATTY mark, there is no believable or realistic reason for registration or use of <balfourbeartty.com> other than to take advantage of Complainant's rights. The domain name was only registered recently, on March 16, 2018.
To the best of Complainant's knowledge, Respondent has never been known as "Balfour Beatty." According to the WhoIs registry, Respondent is "Kelvin Carson."
Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. As discussed below, it is being used for phishing personal and/or financial information from Complainant's customers, by using an email address purporting to be Complainant.
Registered and Used in Bad Faith
Complainant's BALFOUR BEATTY mark significantly pre-dates Respondent's registration of the disputed domain name.
The disputed domain name currently resolves to a blank page. Respondent is using the disputed domain name for phishing by using an email address, purporting to be Complainant, in order to obtain personal or financial information for Respondent's personal gain. In support, Complainant attaches a screen shot of what appears to be a portion of an email message showing the following:
"Sender": an individual with an email address sent from the disputed domain name.
"Subject": "Gatty Marine Research Facility"
"Attachments": two ".pdf" attachments named "Balfour Bank Confirmation Letter" and "Balfour Invoice CSUKOU_INV_55490-1"
Respondent has engaged in typosquatting, which amounts to bad faith registration and use.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
To prevail, a complainant must prove, as to a disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which the complainant has rights.
(ii) The respondent has no rights or legitimate interests in respect to it.
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). The Policy sets out examples of circumstances that may evidence a respondent's rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as circumstances that may evidence a respondent's bad faith registration and use, see Policy, paragraph 4(b). Not responding to a complaint does not automatically result in a finding for the complainant. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.3. A complainant continues to have the burden of establishing each element. The Panel may, however, draw such inferences from Respondent's default as appropriate. See Rules, paragraph 14(b).
A. Identical or Confusingly Similar
Complainant has established its rights in the mark through its European Union trademark registration.
The disputed domain name is not identical to Complainant's mark. Whether it (disregarding the top-level domain ".com") is confusingly similar to the mark, involves a straightforward comparison of the textual portion of the mark with the domain name. See WIPO Overview 3.0, section 1.7. The Panel subscribes to the consensus view that the test for confusing similarity is satisfied where the mark is recognizable within the domain name, despite the addition of descriptive, geographical, or other terms. See WIPO Overview 3.0, section 1.8.
The disputed domain name strongly resembles Complainant's mark visually and audibly, and because it appears to be a misspelling of Complainant's mark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
B. Rights or Legitimate Interests
The Panel shares the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing. See WIPO Overview 3.0, section 2.1 (once complainant makes a prima facie case, burden of showing rights or legitimate interests in the domain name shifts to respondent). The Panel finds that Complainant has made a prima facie showing under this element.
It does not appear that Respondent is commonly known by the disputed domain name. Complainant has not authorized Respondent's use of the disputed domain name. On this record, it does not appear that Respondent has used the disputed domain name in connection with a bona fide offering, as discussed below.
The Panel concludes that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Complainant must establish that the disputed domain name was registered and is being used in bad faith.
The fact that the disputed domain name does not resolve to an active website does not prevent a finding of bad-faith use. Under these circumstances, the Panel concludes that Respondent registered and is using the disputed domain name in bad faith. Complainant's mark is well known and predates registration of the disputed domain name. Given the similarity between the disputed domain name and Complainant's well-known mark, it seems most probable that Respondent was aware of Complainant and its mark and registered the domain name with them in mind1.
In light of these facts and the adverse inferences that arise from Respondent's failure to respond to the Complaint, the Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith.
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 <balfourbeartty.com> be transferred to Complainant.
Debra J. Stanek
Date: July 4, 2018
1 The Panel reviewed the evidence of "phishing" submitted by Complainant. The screenshots were incomplete, therefore the Panel gave it less weight than had it been supported by some explanation or testimony.