WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Triton Investco SARL and Triton Investments Advisers LLP v. Dave Mark
Case No. D2019-2331
1. The Parties
The Complainants are Triton Investco SARL, Luxembourg and Triton Investments Advisers LLP, United Kingdom, represented by Demys Limited, United Kingdom.
The Respondent is Dave Mark, Canada.
2. The Domain Name and Registrar
The disputed domain name <triton-partnersllp.com> (the “Domain Name”) is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2019. On September 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 25, 2019, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on September 27, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 17, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2019.
The Center appointed Ellen B Shankman as the sole panelist in this matter on October 29, 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.
Request for Consolidation
The Complainants contend they have a specific common grievance against the Respondent, in that the Respondent has targeted both Complainants’ rights. As detailed under the submissions concerning rights below, the Domain Name is confusingly similar to the First Complainant’s registered rights and confusingly similar to the Second Complainant’s main business domain name, <triton-partners.com>, which is inter alia used for its corporate email communication with staff, customers and other third parties. The Complainants contend that the Respondent will not be prejudiced by the Complaint being brought jointly by both Complainants. The Complainants also contend that it is both equitable and procedurally efficient to permit the consolidation.
The Panel finds that the Complainants provided sufficient and persuasive reasoning to consolidate the single proceeding against the Respondent by both related Complainant entities, and referred to hereinafter as “the Complainant”. This holding is consistent with section 4.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) which notes:
“In assessing whether a complaint filed by multiple complainants may be brought against a single respondent, panels look at whether (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants in a similar fashion, and (ii) it would be equitable and procedurally efficient to permit the consolidation”.
The Panel finds that both elements have been met herein and this case is properly consolidated.
4. Factual Background
The date of the Domain Name registration was confirmed by the Registrar to be August 21, 2019.
The trademark TRITON serves as a house-mark of the Complainant and is protected as a registered trademark in multiple jurisdictions world-wide.
The Complainant provided evidence of multiple trademark registrations for the mark TRITON including, inter alia, International Registrations No. 1303536A (registered on May 10, 2006) and European Union Registration No. 008691016 (registered on October 16, 2012) and Germany Registration No. 302009067313 (registered on March 3, 2010) for the word mark that predate the date of the Domain Name registration for a variety of business services.
The Panel also conducted an independent search to determine that the Domain Name is currently active, and appears to be a parking page with links to advertisements
5. Parties’ Contentions
The Complainants are two entities within a group of related legal entities named Triton. The First Complainant, Triton Investco SARL is a limited company registered in Luxembourg, and is the holder of multiple TRITON registered trademarks on behalf of the Triton corporate group. The Second Complainant, Triton Investments Advisers LLP, is a limited liability partnership registered in the United Kingdom. Established in 1997, the Triton corporate group of which the Complainants form part is an investment firm which invests primarily in German-speaking countries, the Nordic countries, the Benelux region, France, Italy, Spain and the United Kingdom, focusing on companies with the potential to create sustainable, long term value through changing economic cycles. As per the Panel’s finding above, herein after the two entities are referred to as “the Complainant”.
The Complaint sets forth that the Complainant is currently invested in companies in Europe with combined sales of around EUR 14 billion and around 72,500 employees. The Complainant has 12 offices worldwide, including inter alia, in Denmark, China, the United Kingdom and the United States. The Complainant operates a website at the URL “www.triton-partners.com” and has done so since at least May 1999. The Complainant uses its domain name for the sending and receipt of corporate email.
The Complainant argues that Domain Name incorporates the First Complainant’s trademark, TRITON, which, viewed as whole, is its most dominant element. As mentioned above, the Second Complainant’s main business website is located at the domain name <triton-partners.com>, which is also the Second Complainant’s principal domain name for corporate email. The second level of the Domain Name differs from the Complainant’s domain name only by the inclusion of “llp”, which is a generally accepted abbreviation for “limited liability partnership”, being the Second Complainant’s legal form. The Complainant contends that the inclusion of “llp” only serves to further increase the likelihood of confusion.
The Domain Name was created on August 21, 2019 at 07:25. The Complaint alleges that the Domain Name came to the Complainant’s attention at 12:39 the same day when they received an email using the Domain Name from the Group CFO (“CFO”) of one of the companies in whom the Complainant’s group has invested alerting the Complainant to the fact that an individual impersonating the Complainant’s Managing Partner (“MP”) was using the Domain Name to attempt to persuade the CFO to loan monies to the MP of the Complainant, suggesting that funds be remitted directly by the CFO. The MP was unconnected in any way to the registration or use of the Domain Name. The Complainant provided evidence that the Domain Name was created only a few hours earlier the same day that it was being used by the Respondent to impersonate the MP in an email using the Domain Name sent to the CFO. [To avoid the potential of identity fraud, the Panel is redacting the name of the person imitated, as well as the name and company of the person who made the report of the attempted fraud.]
The Complaint contends that the Domain Name is being used as part of a “business compromise email” scam. This type of scam commonly involves a criminal impersonating personnel within an entity using a typographical variant of that entity’s corporate domain name in order to have payments made to the criminal.
The Complaint also states that little is known by the Complainant about the true Respondent’s identity and given the use to which the Domain Name has been put, it is presumed that the registrant details are unlikely to lead to a real person. Indeed, the Respondent’s address on the WhoIs for the Domain Name in Niagara Falls, Canada would appear to be the address of the Sheraton On The Falls Hotel overlooking Niagara Falls and the Complainant reasonably submits that the Respondent is unlikely to reside there. However, a person with the same name – Dave Mark, from Niagara Falls, Canada – has previously been a respondent in UDRP proceedings in connection with registering an infringing domain name and using it in a business compromise email scam.
The Complainant argues that the use of the Domain Name in an impersonation scam targeting the Complainant indicates that the Respondent itself considered that the Domain Name was confusingly similar to the First Complainant’s mark and the Second Complainant’s main domain name to a sufficient degree that it would be likely to render the Respondent’s fraudulent impersonation of the Complainant’s group successful and lead to a payment being made on the Respondent’s instructions.
To summarize the Complaint, the Complainant is the owner of multiple registrations for the trademark TRITON, in respect of a business services. The Domain Name is confusingly similar to the trademark owned by the Complainant. The addition of the generic or descriptive letters "llp" to the term does not prevent a finding of confusing similarity and if anything enhances it. Therefore, the Domain Name <triton-partnersllp.com> could be considered confusingly similar to the Complainant’s trademark. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Domain Name was registered and is being used in bad faith, and is being used for fraudulent activity and appears to be a pattern of such fraudulent behavior by the Respondent. That continued use of the Domain Name would lead to a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Respondent by the Complainant. Thus, the Respondent’s registration and use of the Domain Name constitutes bad faith registration and use under the Policy, and the Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The burden for the Complainant under paragraph 4(a) of the Policy is to prove:
(i) That the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) That the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) That the Domain Name has been registered and used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has satisfactorily proven that it has registered trademark rights for TRITON.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s trademark. Further, the Panel finds that the addition of the descriptive term “llp” does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s trademark. See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110, stating “The incorporation of a Complainant’s well-known trademark in the registered Domain Name is considered sufficient to find the Domain Name confusingly similar to the Complainant’s trademark.” See also section 1.8 of the WIPO Overview 3.0.
Accordingly, the Panel finds that the Complainant has satisfied the first requirement that the Domain Name is identical or confusingly similar to the Complainant’s registered trademark, under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that establishing the second element could result in the often-impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the Domain Name <triton-partnersllp.com> and that the Respondent is not related to or affiliated in any way with the Complainant, nor has the Complainant authorized the Respondent to use its trademarks.
Based on the available record, the Panel finds that the Complainant has established a prima facie case, which was not refuted, and that the Respondent lacks rights or legitimate interests in the Domain Name.
Therefore, the Complainant has satisfied the second requirement that the Respondent has no rights or legitimate interests in the Domain Name, under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Given the distinctiveness of the Complainant’s trademark and reputation, together with the name used to obtain the Domain Name and the evidence of the emails sent imitating the Complainant the Panel agrees with the Complainant’s claims that the Respondent has registered the Domain Name with full knowledge of the Complainant’s trademark TRITON and uses it for the purpose of defrauding people based on the likelihood of confusion and imitation of the Complainant and its brand.
The Panel finds that this is a classic example of the unfortunate fraudulent and opportunistic registration that the UDRP is intended to address, and finds that the Respondent is using the Domain Name opportunistically to make targeted fraudulent requests involving imitation of identity and transfers of monies.
Thus, the Panel finds that the Respondent’s use of the Domain Name creates confusion as to the source of the Domain Name in an attempt to trade on the goodwill associated with the Complainant’s trademark. A respondent’s use of a complainant’s mark-for said respondent’s commercial benefit-to attract Internet users otherwise seeking said complainant evinces a finding of bad faith per Policy 4(b)(iv) and is consistent in this case. See section 3.1.4 of the WIPO Overview 3.0 which states:
“Panels have moreover found the following types of evidence to support a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark: (i) actual confusion, (ii) seeking to cause confusion (including by technical means beyond the domain name itself) for the respondent’s commercial benefit, even if unsuccessful, (iii) the lack of a respondent’s own rights to or legitimate interests in a domain name, (iv) redirecting the domain name to a different respondent-owned website, even where such website contains a disclaimer, (v) redirecting the domain name to the complainant’s (or a competitor’s) website, and (vi) absence of any conceivable good faith use.)”
Furthermore, the Panel finds that the emails sent utilizing the Domain Name constitutes a fraud and/or phishing scheme, aiming to deceive Internet users to believe they are dealing with the Complainant. See Accor SA v. Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyProtect.org / Yogesh Bhardwaj, WIPO Case No. D2017-1225.
In addition, the Panel finds that the Respondent’s use of an apparent fake address in obtaining the Domain Name, together with the fact that a person with the same name - Dave Mark, from Niagara Falls, Canada - has previously been a respondent in UDRP proceedings in connection with registering a domain name and using it in a business compromise email scam, shows a pattern of opportunistic bad faith use and registration. The Panel’s decision is consistent with the panel’s decision in SoftBank Group Corp. v. Dave Mark, WIPO Case No. D2019-0481, in which the panel stated the following:
“Confusion is inevitable and in this case is compounded by the fraudulent email address which poses as that of the CEO of the Complainant. The Respondent clearly targeted the Complainant when registering the disputed domain name and the use of the disputed domain name was for commercial gain. In terms of the Policy the Panel finds that the Respondent has intentionally attempted to attract, for commercial gain, an Internet user to an online location by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation, or endorsement of that location”.
Given the evidence of the Complainant’s prior rights in the trademark, the timing of the registration of the Domain Name with apparent full knowledge of and deliberate imitation of Complainant’s Managing Partner for opportunistic fraudulent financial gain, the Panel finds that the Complainant has satisfied the third requirement that the Respondent has registered and is using the Domain Name in bad faith, under 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 Domain Name <triton-partnersllp.com> be transferred to the Complainant.
Ellen B Shankman
Date: November 8, 2019