WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ares Management LLC v. Registration Private, Domains By Proxy LLC / Dalton Rismay
Case No. D2019-0933
1. The Parties
The Complainant is Ares Management LLC, United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
The Respondent is Registration Private, Domains By Proxy LLC, United States / Dalton Rismay, Canada.
2. The Domain Name and Registrar
The disputed domain name <aresscapital.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2019. On April 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 26, 2019, 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 April 29, 2019, 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 5, 2019.
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 May 6, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 26, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 27, 2019.
The Center appointed Ian Lowe as the sole panelist in this matter on June 5, 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 subsidiary of Ares Management, L.P. (“Ares”), which is a publicly traded, leading global alternative asset manager with approximately USD 121.4 billion of assets under management as of June 30, 2018. It is based in Los Angeles, United States and has approximately 1,000 employees in offices across the United States, Europe, Asia and Australia. Ares Capital Corporation is a leading specialty finance company managed by Ares that provides financing to private middle-market companies across diverse industries. Ares has used the trademark ARES since September 1997.
The Complainant is the proprietor of a substantial number of registered trademarks in 39 countries across the world in respect of both ARES and ARES CAPITAL, including United States trademarks number 3,014,171 ARES registered on November 8, 2005, and number 3,925,364 ARES CAPITAL registered on March 1, 2011; and Canada trademarks number TMA953094 ARES registered on October 24, 2016, and number TMA958175 ARES CAPITAL registered on December 15, 2016.
The Complainant also has a portfolio of domain names, including <aresmgt.com> (in use since 2007) and <arescapitalcorp.com>.
The Domain Name was registered on July 25, 2018, and redirects to an error page.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its ARES CAPITAL trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name 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; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has uncontested rights in the trademark ARES CAPITAL, both by virtue of its trademark registrations and as a result of the goodwill and reputation acquired through its use of the ARES CAPITAL mark over several years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the entirety of the Complainant’s mark with the insertion of the letter “s”. In the Panel’s view, the additional letter does not detract from the distinctiveness of the ARES CAPITAL trademark. Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has submitted strong prima facie evidence that the Respondent can have no rights or legitimate interests in respect of the Domain Name. In the Panel’s view, the Domain Name is a typical example of typosquatting, whereby a domain name is registered with a minor variation of a well-known brand name with a view to taking advantage of typographical errors by Internet users. Such a registration cannot possibly, on the face of it, give rise to rights or legitimate interests on the part of the registrant of a domain name. Furthermore, the Respondent has not made any use of the Domain Name that might give rise to such rights or interests.
The Respondent has chosen not to respond to the Complaint and has accordingly failed to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
The Panel considers that there is no doubt that the Respondent had the Complainant in mind when it registered the Domain Name and that it did so with the intention of using the Domain Name to deceive Internet users into believing that it was registered by or associated with the Complainant. The Panel cannot conceive of a legitimate use to which the Respondent could put the Domain Name. Although the Respondent has made no active use of the Domain Name, section 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition notes that, from the inception of the UDRP, panelists have found that the non-use of a domain name does not prevent a finding of bad faith under the doctrine of passive holding. It depends on the facts of the case, and the failure of the Respondent to provide any evidence of actual or contemplated good-faith use is a relevant factor. Typosquatting amounts to paradigm bad faith registration and use for the purposes of paragraph 4(a) of the Policy. In the circumstances, the Panel finds that the Domain Name was registered and is being used 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 Domain Name <aresscapital.com> be transferred to the Complainant.
Date: June 13, 2019