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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Webpals Systems S.C. Ltd. v. WhoIs Agent, Domain Protection Services, Inc. / Sean Lindo

Case No. D2019-2788

1. The Parties

1.1 The Complainant is Webpals Systems S.C. Ltd., Israel, represented by Herzog, Fox & Neeman, Israel.

1.2 The Respondent is WhoIs Agent, Domain Protection Services, Inc., United States of America (“United States”) / Sean Lindo, United States.

2. The Domain Name and Registrar

2.1 The disputed domain name <moneyunder36.com> (the “Domain Name”) is registered with Name.com, Inc. (Name.com LLC) (the “Registrar”).

3. Procedural History

3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 14, 2019. On November 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 14, 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 November 18, 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 November 19, 2019.

3.2 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”).

3.3 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.

3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on December 24, 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

4.1 The Complainant is a company incorporated in Israel. It operates a number of websites that contain articles and posts on various personal finance products and services. One of such websites is “www.moneyunder30.com” launched in 2006, and acquired in 2017 by XLMedia Finance Limited, which is an affiliated entity of the Complainant. As the name suggests, this website offers financial information customised to a younger audience. It currently has over 2 million visitors a month and generates a monthly average income of USD 400,000. Since its acquisition, the Complainant has engaged in extensive marketing activities in relation to the website with a monthly marketing budget of approximately USD 100,000.

4.2 The Complainant is the proprietor of US trade mark no 4212757 for the standard character mark “MONEY UNDER 30” in class 41. The mark was filled on September 19, 2011, and proceeded to registration on September 25, 2012. The mark was initially registered by Moneyblogs LLC but was assigned to XLMedia Plc on or about October 30, 2017, and then assigned to the Complainant on or about February 21, 2018.

4.3 The Respondent would appear to be an individual in the United States.

4.4 The Domain Name was initially registered on March 13, 2019. Shortly after registration the Domain Name was used to display a website that was very similar in design to that operating from the “www.moneyunder30.com” website and offering the same products and services. It used a logo that was extremely similar to that used for the “www.moneyunder30.com” website. The two logos are set out below:

logo

logo

4.5 The website operating form the Domain Name also copied significant elements of text including the privacy policy appearing on the “www.moneyunder30.com” website. It reproduced the name of the Complainant in doing so. Further, it also falsely claimed that “Money Under 36” was founded by David Weliver in 2006, when in fact Mr Weliver was the founder of the “www.moneyunder30.com” website.

4.6 In May 2019 the Complainant’s lawyers sent a cease and desist letter to the privacy service provider in whose name the Domain Name was then registered and followed that up with similar letters to the host of the website operating from the Domain Name in June 2019 and to the Registrar in June 2019 and September 2019. The Registrar responded on September 4, 2019, stating that the Domain Name was registered with a privacy service. At that time, it did not disclose the underlying registrant of the Domain Name but stated that the underlying registrant could be contacted via a web form. The Registrar also described various legal avenues open to the Complainant in respect of the Domain Name and the content of the website, but did not offer to take any further steps itself.

4.7 Whether as a result of the Complainant’s correspondence or otherwise, there is no longer any website operating from the Domain Name.

5. Parties’ Contentions

A. Complainant

5.1 The Complainant refers to its business and registered trade mark and the way in which the Domain Name has been used. It contends that the Domain Name is confusingly similar to the Complainant’s mark. It contends that the use made of the Domain Name does not involve a bona fide offering of services and that the Respondent has no rights or legitimate interests in the Domain Name. It also contends that the Domain Name was registered and used in bad faith and relies in this respect, inter alia, upon what it characterises as fraudulent claims that the website operating from the Domain Name was founded by David Weliver. It also makes reference to paragraph 4(b)(iv) of the Policy.

B. Respondent

5.2 The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.

6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that:

(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and

(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and

(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).

6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.

A. Identical or Confusingly Similar

6.4 The Complainant has demonstrated that it owns registered trade mark rights in the term “Money Under 30” and the Panel accepts that the only sensible reading of the Domain Name is as the phrase “Money Under 36” combined with the “.com” Top-Level Domain (“TLD”). The use of the number “36” instead of “30” is not a significant difference and as a consequence the Complainant’s trade mark remains recognisable in the Domain Name. This is sufficient for a finding that the Domain Name and the Complainant’s trade mark are “confusingly similar” as that term is understood under the Policy; as to which see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”). In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests; Registration and Used in Bad Faith

6.5 It is usual for panels under the Policy to consider the issues of rights or legitimate interests and registration and use in bad faith in turn. However, in a case such as this it is more convenient to consider those issues together.

6.6 The Panel accepts that the Domain Name has been registered and used by the Respondent to deceptively represent that it was the entity that operated the “www.moneyunder30.com” website, when it was not. This is abundantly clear from the form and content of the website that operated from the Domain Name, including copying the name of the Complainant and the false claim that it had been founded by the person who has founded the “www.moneyunder30.com” website.

6.7 There are no rights or legitimate interests in holding a domain name to further fraudulent impersonation and such activities constitute clear and compelling evidence that no such rights or legitimate interests exists. Further, use of a domain name for such a purpose involves registration and use in bad faith (see, for example, Weber-Stephen Products LLC v. WhoisGuard Protected, WhoisGuard, Inc. / Daniela Gebauer, Kitchenhelpers GmbH, WIPO Case No. D2017-0118).

6.8 The Respondent’s activities also fall within the scope of the example of circumstances indicating bad faith set out in paragraph 4(b)(iv) of the Policy

6.9 In the circumstances, the Panel has no hesitation in finding that the Complainant has made out the requirements of paragraphs 4(a)(ii) and 4(a)(iii) of the Policy.

7. Decision

7.1 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 <moneyunder36.com> be transferred to the Complainant.

Matthew S. Harris
Sole Panelist
Date: January 2, 2020

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