WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Marlink SA v. Sam Hen, Elegant Team
Case No. D2019-1215
1. The Parties
Complainant is Marlink SA, Belgium, represented by Inlex IP Expertise, France.
Respondent is Sam Hen, Elegant Team, Nigeria.
2. The Domain Name and Registrar
The disputed domain name <marlimk.com> (the “Disputed 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 May 28, 2019. On May 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 29, 2019, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on June 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 25, 2019. Respondent did not submit any response. Accordingly, on June 27, 2019, the Center notified Respondent’s default.
On July 3, 2019, the Center appointed Roberto Bianchi as the sole panelist in this matter. 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 a Belgium company that provides telecommunication services and cybersecurity services in the maritime industry.
Complainant owns the following trademarks:
MARLINK, European Union word trademark, Registration No. 015333487, registered on October 4, 2016, filed on April 13, 2016, covering “Telecommunication services; Communication services by satellite; Satellite transmission; Providing of information relating to communications via satellite”, in International Class 38, claiming seniority for the following trademark registrations: Benelux, Registration No. 0607403, registered on June 24, 1996; Germany, Registration No. 39628128, registered on June 26, 1996: and Denmark, Registration No. VR 1996 04789, registered on June 27, 1996.
MARLINK, European Union word and device trademark, Registration No. 015462864, registered on September 16, 2016, ﬁled on May 23, 2016, covering “Telecommunication services; Satellite communications services; Satellite transmissions; information services in the field of satellite communications”, in International Class 38.
MARLINK, International word and device trademark, Registration No. 1306931, registered on June 28, 2016, covering “Telecommunication services; satellite communication services; satellite transmissions; information services in the field of satellite communications”, in International Class 38, based on European Union trademark Registration No. 015333487 and claiming protection in Japan, Norway, Singapore and United States of America.
MARLINK, International word trademark, Registration No. 1309586, registered on July 13, 2016, covering “Telecommunication services; communication services by satellite; satellite transmission, providing of information relating to communications via satellite”, in International Class 38, on the basis of European Union Trademark Registration No. 015333487 and claiming protection in Algeria, Republic of Korea, Mexico, and Viet Nam.
Complainant also owns the domain name <marlink.com>, registered on May 10, 1996, at which Complainant operates its official website.
The Disputed Domain Name was registered on February 14, 2019.
According to the Complaint, the Disputed Domain Name resolved to an error page, and was used for sending fraudulent emails.
Currently, the Disputed Domain Name also does not resolve to any active website, as the browser returns an error message reading “We are having problems to find this site”.
5. Parties’ Contentions
Complainant contends that the Disputed Domain Name is identical or confusingly similar to Complainant’s mark MARLINK. Both signs are composed of seven letters. Since six of these letters are identical, and placed in the same order, there is high similarity on the visual and phonetical standpoints. Substitution between the letters “m” and “n” is a classical typosquatting case. Moreover, since this misspelling is at the end of the signs, it will not catch the public’s attention. The fact that both signs have no meaning increases the likelihood of confusion between Complainant’s trademarks and the Disputed Domain Name. In this regard, a Google search for the term “marlimk” returns a suggestion to search for the word “marlink”, thus referring to Complainant and its marks MARLINK. See Annex 7 to the Complaint.
Complainant also contends that Respondent has no rights, including trademark rights, in respect of the name Marlimk. There is no business or legal relationship between Complainant and Respondent. Complainant has neither authorized nor licensed Respondent to use its trademarks in any way. In addition, it seems that Respondent is not commonly known under the Disputed Domain Name. Google searches for the terms “marlimk + elegant team” or “marlimk + sam hen” did not reveal any link between the sign Marlimk and Respondent.
In addition, Complainant notes that the Disputed Domain Name was registered by providing a false address, “9314 willard dr.”, which does not resolve to an existing address in Surulere, Lagos, Nigeria. Moreover, the Disputed Domain Name points to an error page. Therefore, Respondent has no legitimate interest in the Disputed Domain Name.
Further, when Respondent registered the Disputed Domain Name, he created a mail exchange record (MX record) for sending emails. There is evidence that Respondent by using this MX record and the email address “[...]@marlimk.com” has impersonated a Complainant’s employee, (Name Redacted). This email address has been used for sending emails to clients of Complainant to demand a huge sum of money (USD 54,448.06) based on a pending invoice. Complainant’s employee (Name Redacted) informed the Company’s management of this fraudulent email in order to avoid any confusion and misunderstanding which could affect not only his integrity and honor as an employee but also Complainant’s interests.
These facts clearly demonstrate that there is no link between Respondent and Complainant, and that Respondent has never been authorized to act in the name and on behalf of an employee of Complainant. On May 6, 2019, when this fraud was discovered, Complainant reacted by sending a cease-and-desist letter by email to Respondent. Complainant never received any reply to this letter, which raises a further inference that Respondent has no legitimate interest in the Disputed Domain Name. This behavior of Respondent can be considered as evidence of a phishing scam and a fraudulent attempt to deceive the recipient into communicating with Respondent on the pretense that an invoice was unpaid and in order to obtain a payment of this false invoice. This kind of use strongly indicates that Respondent does not have any legitimate interest in the Disputed Domain Name. Respondent’s provision of false contact information further supports a ﬁnding that Respondent does not have a right or legitimate interest in the Disputed Domain Name.
Lastly, Complainant contends that the Disputed Domain Name was registered and is being used in bad faith. Respondent is intentionally attempting to take advantage of Complainant’s trademarks MARLINK to generate profits with email services attached to the Disputed Domain Name. As stated above, Respondent has sent at least one email from the false email address “[...]@marlimk.com”, created in the name of one of Complainant’s managers. Considering this fraudulent email, it is obvious that at the time of registering the Disputed Domain Name Respondent was not only familiar with Complainant’s trademarks, but also with the company and employee’s identities. It appears that the Disputed Domain Name was registered for the sole purpose of demanding huge sums of money from Complainant’s clients, in bad faith, for fraudulent and phishing purposes.
Complainant adds that Respondent is involved in the reservation of many domain names similar to famous and registered trademarks. A reverse WhoIs search based on the email address of Respondent revealed that he has registered 120 domain names, notably <ballantyne-au.com> which is well known, and other domain names including the generic term “group”, probably to impersonate companies and mislead consumers in order to fraudulently obtain money. In particular, Complainant notes the registration by Respondent of the domain names <ics-groups.com> and <haitonggroups.com>, both of which are similar to existing and legitimate companies. The list of these 120 domain names is provided as Annex 15 to the Complaint.
In light of the above, Complainant concludes that Respondent has registered and used the Disputed Domain Name in bad faith, for the sole purpose of taking undue advantage of Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
By submitting printouts taken from the databases of official trademark offices, Complainant has shown to the satisfaction of the Panel that it has trademark rights in the MARLINK mark. See Section 4 above.
The Panel notes that the Disputed Domain name differs by just one letter from Complainant’s mark, i.e., the Disputed Domain Name contains the letter “m” where Complainant’s mark has the letter “n”. Visually, this is too minimal a difference to distinguish one identifier from the other. Moreover, the letters “m” and “n” are contiguous in the Latin alphabet, and on the keyboard of computers and typewriters. In addition, the difference in sound between “marlink” and “marlimk” is almost imperceptible. Lastly, as stated in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1, the addition of the generic Top Level Domain “.com” is a standard registration requirement and as such is disregarded under the confusing similarity test.
The Panel concludes that the Disputed Domain Name is confusingly similar to Complainant’s MARLINK mark.
B. Rights or Legitimate Interests
Complainant says it has no relationship to Respondent, and that it has not authorized or licensed Respondent to use the MARLINK trademarks in any way. The Panel does not see any evidence showing otherwise. The Panel also notes that according to the corresponding WhoIs data, the registrant of the Disputed Domain Name is Sam Hen, Elegant Team. Nothing suggests that Respondent is known, commonly or otherwise, by the Disputed Domain Name. This discards that Policy, paragraph 4(c)(ii) may be applicable.
The Panel further notes that on the record, the use of the Disputed Domain Name was as an email address in an email sent to one of Complainant’s customers. This email address contained the name of an employee of Complainant, and it was used to demand a substantial sum for an unpaid invoice. In other words, the Disputed Domain Name was used to attempt to fraudulently extract money from a customer of Complainant. Clearly, this impersonation of Complainant to commit fraud is an illegal maneuver and, as such, it cannot confer any rights or legitimate interests in the Disputed Domain Name. See WIPO Overview 3.0, section 2.13.1 (“Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.”).
The Panel also notes that aside from this fraudulent attempt, Respondent does not appear to have used the Disputed Domain Name in any other way. In fact, the Disputed Domain Name does not resolve to any active website. Any attempt to connect a browser to the website at the Disputed Domain Name returns a message stating, “We are having problems to find this site”. Respondent thus appears to be making neither a bona fide use nor a fair or legitimate noncommercial use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers, under Policy, paragraphs 4(c)(i) and 4(c)(iii).
In sum, Complainant has succeeded in raising a prima facie case that Respondent does not have any rights or legitimate interests in the Disputed Domain Name. Since Respondent failed to submit any reasons or explanations whatsoever for his registration and use of the Disputed Domain Name as described, the Panel finds that Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
C. Registered and Used in Bad Faith
As seen at Section 4 above, Respondent registered the Disputed Domain over 20 years after Complainant had registered its MARLINK trademarks in various European countries. In addition, two factors indicate that Respondent knew of, and targeted Complainant when he registered the Disputed Domain Name. First, in the Disputed Domain Name the letter “m” is used instead of the letter “n” in Complainant’s mark, in a clear example of typosquatting. Second, as shown above, Respondent engaged in impersonation of Complainant, and attempted a fraud against Complainant and one of Complainant’s customers, to the detriment of the reputation of Complainant and of one of Complainant’s managers. Such conduct leads to infer that Respondent had previous knowledge of Complainant, its staff and customers, and that at the time of registering the Disputed Domain Name, it targeted Complainant. In other words, the registration of the Disputed Domain Name was in bad faith.
As shown above, Respondent’s active use of the Disputed Domain Name consisted of impersonating Complainant by using the name of an employee of Complainant in an email address at the Disputed Domain Name, and thus attempting to fraudulently exact monies from a customer of Complainant by pretending to be collecting the amount of an unpaid invoice. This behavior reveals utmost bad faith.
The fact that Respondent appears to have provided a false or incomplete address at the time of registering the Disputed Domain Name, and Respondent’s failure in this proceeding to provide any explanation whatsoever for his behavior contribute to the Panel’s overall impression that Respondent is acting in bad faith.
The Panel concluded that the Disputed 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 Disputed Domain Name <marlimk.com> be transferred to Complainant
Date: July 16, 2019