WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pulsa S.A. v. Ulrike Unger
Case No. D2019-2769
1. The Parties
The Complainant is Pulsa S.A., Uruguay, represented by Opice Blum, Brazil.
The Respondent is Ulrike Unger, Germany.
2. The Domain Name and Registrar
The disputed domain name <pulsasa-uy.com> is registered with One.com A/S (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2019. On November 13, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 14, 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 the Complainant on November 14, 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 amendment to the Complaint on November 19, 2019.
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 November 20, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 11, 2019.
The Center appointed Marilena Comanescu as the sole panelist in this matter on December 13, 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, Pulsa S.A., based in Uruguay, is active in the food sector, being a producer and distributor of meat and meat derivatives.
The Complainant holds trademark registrations for PULSA, such as the Uruguayan trademark word registration for PULSA S.A., registration number 464721, filed on May 14, 2015 and registered on January 1, 2016, for goods and services in classes 29 and 35.
The disputed domain name <pulsasa-uy.com> was registered on April 30, 2019.
According to the evidence provided in the Complaint, the disputed domain name was used in connection with phishing emails, sending unsolicited information to Complainant’s customers, purporting to be one of the Complainant’s employees.
At the time of filing the Complaint, the disputed domain name resolved to a website providing goods identical to those offered by the Complainant, displaying the trademark PULSA S.A. and presenting the Respondent under the name “FRIGORIFICO PUL (PULSA S.A.)”.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to its trademarks PULSA S.A. and PULSA and company name Pulsa S.A., the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the potential concurrence of the above circumstances.
A. Identical or Confusingly Similar
The Complainant holds rights in the PULSA S.A. trademark.
The disputed domain name <pulsasa-uy.com> incorporates the Complainant’s trademark in its entirety with the addition of the letters “uy” and a hyphen. However, such minor alteration does not prevent a finding of confusing similarity as the Complainant’s trademark is clearly recognizable within the disputed domain name.
Numerous UDRP panels have considered that the addition of other terms (whether descriptive, pejorative, meaningless or otherwise) to trademarks in a domain name is not sufficient to escape a finding of confusing similarity. See section 1.8 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g.,“.com”, “.info”, “.org”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <pulsasa-uy.com> is confusingly similar to the Complainant’s trademark PULSA S.A., pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent does not hold any trademark rights, license or authorization whatsoever to use the mark PULSA S.A., that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services.
Under the Policy, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. See section 2.1 of theWIPO Overview 3.0.
The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case.
There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name. The Respondent’s name, as registered in the WhoIs, is different from the name presented on the website corresponding to the disputed domain name, name which in fact reproduces Complainant’s trademark and company name, without Complainant’s authorization.
Furthermore, the Respondent has used the disputed domain name in connection with email communications for fraudulent purposes in an attempt to obtain valuable customer information or even financial benefits for its own fraudulent purposes. This is definitely not an activity falling under the circumstances listed by paragraph 4(c) of the UDRP as demonstrating the Respondent’s rights or legitimate interests in the disputed domain name, nor an activity from which rights or legitimate interests could arise.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant holds registered trademark rights for PULSA S.A. since at least 2015.
The disputed domain name <pulsasa-uy.com> was created in 2019 and incorporates the Complainant’s mark with an additional term – “uy”, which may derive from Uruguay, country where the Complainant is located.
For the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark.
At the time of filing the Complaint, the disputed domain name resolved to website providing goods similar to those offered by the Complainant and displaying without rights the trademark PULSA S.A. Paragraph 4(b)(iv) of the Policy provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” is evidence of registration and use in bad faith.
The Respondent was using without permission the Complainant’s trademark, in both the disputed domain name and content of the corresponding website in order to get traffic on its web portal and to obtain commercial gain from the false impression created for Internet users with regard to a potential affiliation or connection with the Complainant.
According to the evidence provided in the Complaint and unrefuted by the Respondent, prior to the present proceeding, the Respondent was using the disputed domain name to send email communications for phishing and other fraudulent purposes in an attempt to obtain confidential information and potential revenues from third parties, impersonating an employee of the Complainant. This is a classic phishing scheme and establishes bad faith use and registration.
UDRP panels have consistently held that the use of a domain name for sending email, phishing, or identity theft is evidence of bad faith. Many of such cases, as well as the present case, involve the respondent’s use of the disputed domain name to send deceptive emails in order to obtain sensitive or confidential information from complainant’s actual or prospective clients, or to solicit payment of fraudulent invoices by the complainant’s actual or prospective customers.
Furthermore, the Respondent refused to participate in the present proceeding in order to provide arguments in its favor and provided false contact information in the WhoIs since the communication of the case file documents to the first Respondent has failed. Having in view the other circumstances of this case, such facts constitute further evidence of bad faith behavior.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <pulsasa-uy.com> be transferred to the Complainant.
Date: December 20, 2019