WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kettle & Barebells Functional Foods AB v. Alexander Bell
Case No. D2018-2885
1. The Parties
The Complainant is Kettle & Barebells Functional Foods AB of Stockholm, Sweden, represented by SILKA Law AB, Sweden.
The Respondent is Alexander Bell of Bern, Switzerland.
2. The Domain Name and Registrar
The disputed domain name <barebeils.com> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2018. On December 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 20, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 20, 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 amendment to the Complaint on December 20, 2018.
The Center verified that the Complaint, together with the amendment to 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 December 21, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 11, 2019.
The Center appointed Dawn Osborne as the sole panelist in this matter on January 17, 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 is a functional food company, launched in 2016, that specializes in protein-enriched foods. The Complainant is the owner of the trade mark BAREBELLS registered as a European Union Mark (No. 016487671) and International mark (No. 1386703) in 2017 for food products. It owns <barebells.com>.
The Domain Name registered in 2018 does not resolve to an active web site and has been used for email scams using the name of one of the officers of the Complainant and the Complainant’s name and logo.
5. Parties’ Contentions
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark BAREBELLS registered as a European Union Mark and International mark in 2017. It owns <barebells.com>.
The Domain Name registered in 2018 is confusingly similar to the Complainant’s trade mark, having replaced only one “l” with the letter “i”.
The Respondent does not have rights or a legitimate interest in the Domain Name. The Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant. The Domain Name does not resolve to an active web site but has been used for email scams impersonating an officer of the Complainant and using the Complainant’s name and logo. This cannot be a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith.
The use of the name of an officer of the Complainant and the Complainant’s logo shows the Respondent has actual knowledge of the Complainant and its business, which coupled together with the fraudulent use of the Domain Name, establishes bad faith registration and use.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A Identical and/or Confusingly Similar
The Domain Name in this Complaint combines a misspelling of the Complainant’s BAREBELLS mark (registered as a European Union and International Mark for food products from 2017) and the generic Top-Level Domain (“gTLD”) “.com”. An “i” has been used because of its similarity to the letter “l” so that the Domain Name resembles the Complainant’s mark.
The addition of a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark or a sign confusingly similar to it for similar services. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is in fact commonly known by the Domain Name, having used a privacy service for the WhoIs details of the Domain Name.
The Domain Name has been used in fraudulent email schemes using the name of an officer of the Complainant and the Complainant’s name and logo. This is designed to be deceptive and confusing and pass off the Respondent as the Complainant. As such, it cannot amount to a bona fide offering of goods and services or a legitimate fair use.
As such, the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Impersonating a complainant by use of the complainant’s mark in a fraudulent email scam is disruptive and evinces bad faith registration and use.
In the opinion of the Panel, the use made of the Domain Name in relation to a fraudulent email scam is confusing in that recipients of any such mails would reasonably believe those emails are connected to or approved by the Complainant as a misspelling of the Complainant’s trade mark, the name of an officer of the Complainant and the Complainant’s logo would be used. This mimicking by the Respondent of the Complainant shows that the Respondent was aware of the Complainant and its business and rights. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of electronic content on the Internet under paragraph 4(b)(iv) of the Policy.
Typosquatting itself is evidence of relevant bad faith registration and use.
As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third element of the Policy under paragraph 4(b)(iv). There is no need to consider any additional grounds of 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 Domain Name <barebeils.com> be transferred to the Complainant.
Date: January 23, 2019