WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

SPMP333 Pty Ltd. v. Eric Bouvier, A+ Tech Services

Case No. D2018-2849

1. The Parties

The Complainant is SPMP333 Pty Ltd. of Burpengary, Queensland, Australia, represented by IP Wealth Pty Ltd, Australia.

The Respondent is Eric Bouvier, A+ Tech Services of Bristol, Connecticut, United States.

2. The Domain Name and Registrar

The disputed domain name <atechservices.com> is registered with eNom, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2018. On December 13, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 13, 2018, 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 December 17, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On December 17, 2018, the Center received an informal email communication from the Respondent. The Complainant filed an amended Complaint on December 20, 2018.

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”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 9, 2018. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on January 10, 2019. On January 17, 2019, the Center received an informal communication from the Complainant, asking for information regarding the suspension of the proceedings.

The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on January 24, 2019. 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

The Complainant, SPMP333 Pty Ltd, is the intellectual property holding entity for its trading company ATECH. The Complainant’s business was known initially as Angry Technology, then ATechnology International, then ATech Services. It provides goods and services relating to software, cloud hosting, managed services, security and disaster recovery, digital design, search engine optimisation, web development, domain registration and SSL certificates, business analysis, project management, and digital marketing consultation. The Complainant started using the trademark ATECH in the United States from at least as early as February 2013, but was known to customers as ATECH previously.

The Complainant’s trademarks include the following:

ATECH, IP Australia, filed and registered May 8, 2013, registration number 1555765, classes 9, 35, 42;

ATECH, European Union Trade Mark, registered February 4, 2015, registration number 1270964, classes 9, 35, 42;

ATECH, United States Patent and Trademark Office, Principal Register, registered July 5, 2016, registration number 4991171, classes 9, 35, 42.

The Complainant also holds the domain names <atechnology.com.au> and <atech.host>.

No background information has been provided by the Respondent except for the contact details provided for the purpose of registration of the disputed domain name, which was registered on May 5, 2014. The disputed domain name has resolved variously to a parking page offering it for sale or has been redirected to the website of a different domain name (“www.atswebs.com”), offering Internet hosting services.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Copies of the Complainant’s trademark registration documents are produced. The Complainant says its reputation and clients are international. The Complainant’s trademark is present in the disputed domain name and the additional word “services” should not be likely to prevent confusion.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has not been authorized by the Complainant to use its trademark. The Complainant says the disputed domain name is not the Respondent’s common or corporate name or trademark and the Respondent is not known as “Atechservices”.

The Complainant says the disputed domain name is redirected by the Respondent to the website “www.atswebs.com”, which purports to sell services similar to the Complainant’s services. There is no offering of services under the name “Atechservices”, but rather under the name “ATS Hosting Solutions”. The disputed domain name itself is not in use, which is evidence of a lack of rights or legitimate interests.

The Complainant further contends that the disputed domain name was registered and is being used in bad faith. It was registered on May 5, 2014, whereas the Complainant filed the Australian trademark ATECH on May 8, 2013 and started trading in the United States in February 2013. The Respondent should have been aware of the Complainant and its business. The Complainant says the disputed domain name was registered to prevent the Complainant from using its trademark in a corresponding domain name.

The Complainant says the Respondent has intentionally attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark. Intending visitors to the disputed domain name are redirected to the website “www.atsweb.com”. This appears to be an attempt to obtain business from visitors by virtue of the Complainant’s registered trademark.

The Complainant says the disputed domain name has never been used under its own name but as “ATS Webs” and more recently as “ATS Hosting Solutions”. In October 2016 the disputed domain name resolved to a page offering it for sale for $100.

The Complainant requests the transfer of the disputed domain name.

B. Respondent

The Respondent did not reply formally to the Complainant’s contentions. The email dated December 17, 2018 from the Respondent to the Center said “What is this about?”.

6. Discussion and Findings

Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:

“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith”.

The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.

A. Identical or Confusingly Similar

The Complainant has produced satisfactory evidence of rights in the trademark ATECH. Paragraph 4(a)(i) of the Policy is written in the present tense and requires that the Complainant “has” rights, however it is noted that the Complainant’s Australian trademark registration pre-dates the registration date of the disputed domain name by a year.

The disputed domain name <atechservices.com> comprises the Complainant’s trademark ATECH with the dictionary word “services” appended. The Panel finds that the Complainant’s trademark is clearly recognizable within the disputed domain name and that the word “services” does not prevent a finding of confusing similarity. The generic Top-Level Domain (gTLD) “.com” may be disregarded. Accordingly the Panel finds the disputed domain name to be confusingly similar to the Complainant’s trademark under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has stated a prima facie case to the effect that the Respondent has not been authorized by the Complainant to use its trademark and has no rights or legitimate interests in respect of the disputed domain name.

Paragraph 4(c) of the Policy provides for the Respondent to refute the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to demonstrate rights or legitimate interests in a disputed domain name by demonstrating, without limitation:

“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.

The Respondent has not responded formally or asserted any rights or legitimate interests in the disputed domain name. The Respondent has offered no evidence that the disputed domain name is in use for a bona fide offering of goods or services, or is in independent use at all, as it has most recently redirected visitors to “www.atswebs.com” which by all accounts seems to be a generic off-the-shelf dummy website (the Panel notes here the vacant “logo” placeholder lower right) rather than one that corresponds to any bona fide offering by the Respondent; in the circumstances, such redirection would not support a claim to rights or legitimate interests and may support a finding of use in bad faith.

The disputed domain name is registered with a privacy service. Insofar as the Respondent, according to the Registrar, has the name Eric Bouvier and has provided the organisation name “A+ Tech Services”, it may have been open to the Respondent to argue that the disputed domain name was close to the organisation name, but he has chosen not to do so. There is no evidence the disputed domain name is in use for any noncommercial or other fair purpose.

The Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name and finds for the Complainant under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Complainant must prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:

“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location”.

The Complainant has produced a screen capture made on November 27, 2018, of the Wayback machine (“www.archive.org”) record of the website to which the disputed domain name had resolved on October 5, 2016. The record shows the disputed domain name to have been for sale through a hosting service for $100. On December 20, 2018, the disputed domain name did not resolve to its own website, but was redirected to another website at “www.atswebs.com”, which offered “ATS Hosting Solutions” under the name “A+ Tech Services Hosting”. Thus, on the totality of the evidence, the disputed domain name is or has been for sale, and presently is not in independent use.

The Panel finds on the evidence and on the balance of probabilities that the disputed domain name was registered primarily for sale to the Complainant or a competitor of the Complainant for profit within the meaning of paragraph 4(b)(i) of the Policy, and that by being advertised for sale, it has been used for that purpose.

As discussed in section 3.1.4 of the WIPO Overview 3.0, “redirecting the domain name to the complainant’s (or a competitor’s) website” may support a finding of bad faith in the terms of paragraph 4(b)(iv) of the Policy. In accordance with section 4.8 of WIPO Overview 3.0, the Panel visited the website “www.atswebs.com” and was not convinced of its authenticity. For example, the links “About us”, “Latest from Blog”, “Our Team”, “Terms of use” and “Privacy Policy” did not, at the time, lead anywhere. Nevertheless, the redirection to this website demonstrated an intention to use the disputed domain name in the interim for commercial gain by attempting to attract visitors, by confusion with the Complainant’s trademark, to a website that appears to offer for sale Internet services, within the meaning of paragraph 4(b)(iv) of the Policy. The commercial gain need not accrue solely to the Respondent.

Accordingly the Panel finds the disputed domain name to have been registered and used in bad faith under paragraph 4(a)(iii) of the Policy.

7. 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 <atechservices.com> be transferred to the Complainant.

Dr. Clive N.A. Trotman
Sole Panelist
Date: February 12, 2019