WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arnold Clark Automobiles Limited v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico
Case No. D2019-1034
1. The Parties
Complainant is Arnold Clark Automobiles Limited, United Kingdom (“U.K.”), represented by Demys Limited, United Kingdom.
Respondent is Registration Private, Domains By Proxy, LLC, United States / Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
2. The Domain Name and Registrar
The disputed domain name <arnoldcalrk.com> 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 May 6, 2019. On May 6, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 7, 2019, 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 Complainant on May 9, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 9, 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 Respondent of the Complaint, and the proceedings commenced on May 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 30, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 3, 2019.
The Center appointed Michael A. Albert as the sole panelist in this matter on June 12, 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
Complainant was founded in 1954 and is now one of Europe’s largest independently owned family-run car dealerships. Complainant currently has over 200 car dealerships throughout the United Kingdom, sells over 250,000 vehicles each year, and generates an annual turnover of over GBP 3bn. Complainant has been featured in several articles by publications such as the BBC.
Complainant is the owner of the domain name <arnoldclark.com>. The domain name links to an active website promoting Complainant’s services and products.
Complainant is the proprietor of the following U.K. trademarks:
Mark: ARNOLD CLARK; U.K. Registration No. 2103334; Registered: April 4, 1997;
Mark: ARNOLD CLARK; U.K. Registration No. 2300325; Registered: December 13, 2002.
Respondent is the owner of the disputed domain name <arnoldcalrk.com>, which was registered on January 28, 2019. The disputed domain name links to seemingly random third-party websites including ones that prompt the user to download software, some of which may be unwanted or malicious.
5. Parties’ Contentions
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s ARNOLD CLARK mark because the only difference between the two is the transposition of the letters “a” and “l” and the generic Top-Level Domain “.com” (“gTLD”).
Complainant also alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that there is no evidence that Respondent is commonly known by ARNOLD CLARK or by the disputed domain name. Complainant also contends that Respondent is not a licensee of Complainant and has not received permission from Complainant to use its trademarks. Complainant further alleges that Respondent has not made any legitimate noncommercial or fair use of the disputed domain name. Complainant contends that the use of the disputed domain name for commercial purposes through its association with commercial websites that induce users to download and install malicious software cannot be a genuine bona fide use.
Lastly, Complainant alleges that Respondent’s conduct is in bad faith as evidenced by the intentional use of a typographical variation of the ARNOLD CLARK mark in order to mislead web users and attract them to Respondent’s website.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name differs from Complainant’s well-known ARNOLD CLARK mark by the translocation of the letters “a” and “l” and the addition of the gTLD “.com.” A domain name consisting of an obvious misspelling of a trademark, such as the inversion of two letters, is considered to be confusingly similar to the relevant mark. The TLD is a standard registration requirement and is therefore disregarded when assessing confusing similarity. The disputed domain name is therefore confusingly similar to Complainant’s mark ARNOLD CLARK.
The Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
There is no evidence that Respondent has made any use of, or demonstrable preparations to use, the disputed domain name <arnoldcalrk.com> in connection with the bona fide offering of goods and services. Nor is there any evidence that Respondent is commonly known by the name “Arnold Clark” or the disputed domain name <arnoldcalrk.com>.
Complainant has shown that the disputed domain name is not based on any rights or legitimate interests. Rather, it is being used to divert web users seeking or expecting Complainant towards Respondent’s unassociated website for commercial gain. The Panel also agrees with Complainant’s contention that the use of the disputed domain name to encourage users to download malicious content does not confer a bona fide legitimate interest upon Respondent.
The Panel finds that Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The disputed domain name was registered and is being used in bad faith.
Respondent is using the disputed domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion. Such activity creates a presumption of bad faith that is unrebutted by Respondent. The Panel finds it reasonable to infer bad faith registration from the bad faith use of the disputed domain name and from the lack of evidence indicating any other use.
Bad faith registration and use is further indicated by the use of the disputed domain name to induce Internet users to download and install unwanted or malicious software.
The Panel finds that Complainant has satisfied paragraph 4(a)(iii) of the Policy.
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 <arnoldcalrk.com> be transferred to Complainant.
Michael A. Albert
Date: June 28, 2019