WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Hyperion Materials & Technologies AB v. Osama Osama

Case No. D2020-0251

1. The Parties

The Complainant is Hyperion Materials & Technologies AB, Sweden, represented by Ports Group AB, Sweden.

The Respondent is Osama Osama, United States of America (“United States”).

2. The Domain Name and Registrar

The disputed domain name <hyperlonmt.com> 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 January 31, 2020. On January 31, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 1, 2020, 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 February 4, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 24, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 25, 2020.

The Center appointed Gabriel F. Leonardos as the sole panelist in this matter on March 2, 2020. 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 is Hyperion Materials & Technologies AB. Hyperion Materials is a global leader in hard and super-hard materials. The company offers an extensive portfolio of cemented carbide, diamond, and cubic boron nitride materials, which can be engineered and designed to meet the demands of applications such as mining and manufacturing.

The company is born out of GE, Diamond Innovations, and Sandvik Hard Materials, and has been a standalone company since July 2018. Hyperion Materials employs more than 1,600 people around the world and markets its products in more than 70 countries in North and South America, Europe, and Asia.

The Complainant owns several trademark registrations before Patent and Trademark Offices worldwide, mainly in Brazil, Mexico, and European Union, as can be verified in the Annex 4 of the Complaint. As an example, it can be mentioned the following trademark registrations owned by the Complainant: HYPERION (Mexican Trademark, Reg. No. 1961135, filed on October 26, 2017); HYPERION (European Trademark, Reg. No. 017359886, filed on October 10, 2017); and, HYPERION (Brazilian Trademark, Reg. No. 913727091, filed on November 14, 2017).

The Complainant also owns trademark registrations for the sign HYPERION in other jurisdictions, such as United States and Hong Kong, China.

Besides the mentioned registrations, the Complainant owns the domain name <hyperionmt.com>, which was registered in July 6, 2017.

The disputed domain name <hyperlonmt.com> was registered on November 7, 2019, and resolves to a “not found” page.

5. Parties’ Contentions

A. Complainant

The Complainant submits that the disputed domain name <hyperlonmt.com> is confusingly similar to its registered trademark HYPERION and its domain name <hyperionmt.com>. This is because the word “hyperion” is sometimes written as “hyperIon” by only changing the “i” to a “l”. This way, the Complainant argues that with the exception of the referred letters, the disputed domain name is identical to its trademark HYPERION.

The Complainant also notices that the word “hyperlonmt” incorporated by the disputed domain name is an intentional misspelling of its trademark, what constitutes typosquatting and can cause consumers confusion, fulfilling the requirements of paragraph 4(a)(i).

Furthermore, the Complainant affirms that the Respondent does not have any rights or legitimate interest in respect of the trademark HYPERION nor any permission to register the trademark as a domain name.

The Complainant alleges that the webpage displayed through the disputed domain name is a “not found”, page, meaning that there is no evidence of legitimate use of the disputed domain name for any activity or business. In addition, there is no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.

Moreover, the Complainant claims that the Respondent was aware of the Complainant’s business when registering the disputed domain name. In this regard, the Respondent would have registered the disputed domain name primarily for typosquatting and with the purpose of selling, renting, or transferring the disputed domain name to the Complainant.

Given the abovementioned, the Complainant sent the Respondent a Cease and Desist letter on December, 3, 2019, and did not receive any answer. According to the Complainant, this also suggests that the disputed domain name has been registered and is being used in bad faith.

B. Respondent

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

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all the elements listed in paragraph 4(a) of the Policy have been satisfied, as following:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,

(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and,

(iii) the disputed domain name has been registered and is being used in bad faith.

The burden of proving these elements is on the Complainant.

The Respondent had 20 days to submit a response in accordance with paragraph 5(a) of the Rules and failed to do so. Paragraph 5(f) of the Rules establishes that if the Respondent does not respond to the Complaint, the Panel’s decision shall be based upon the Complaint.

A. Identical or Confusingly Similar

The Complainant has duly proven the first element under paragraph 4(a) of the Policy by showing evidence that it is the owner of several trademark registrations for HYPERION in jurisdictions throughout the world and that such trademark is contained in its entirety in the disputed domain name <hyperlonmt.com>, with the sole difference that the “i” was substituted by an “l” in the word “hyperlonmt”.

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark since its most distinctive feature, “hyperlonmt”, is practically identical to the Complainant’s HYPERION trademark.

The Panel finds this to be a clear case of “typosquatting” wherein the Respondent has misspelled the trademark HYPERION. As decided in previous UDRP decisions, the practice of “typosquatting” creates domain names that are confusingly similar to the relevant mark by, for example, removing or changing one letter from the trademark as has occurred in this case. In this sense, the Panel refers to the decision in Calvin Klein Trademark Trust and Calvin Klein Inc. v. Above.com Domain Privacy / Shu Lin, WIPO Case No. D2016-1733.

Therefore, the Panel considers the requirements of the first element of paragraph 4(a) of the Policy to be satisfied.

B. Rights or Legitimate Interests

The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) as follows: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, 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.”

In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests, so the burden of production shifts to the Respondent. As the Respondent has not replied to the Complainant’s contentions, that burden has not been discharged, and the Panel has considered the Complainant’s prima facie case to be adequate to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name <hyperlonmt.com>.

The Panel finds that the Respondent’s use of the disputed domain name incorporating a variation of the Complainant’s trademark, in connection with a “not found” page, does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use.

The Panel finds that the Complainant has never granted any authorization or license to the Respondent regarding the use of the Complainant’s trademarks, nor is the Respondent affiliated in any way with the Complainant, or otherwise commonly known by the disputed domain name.

Accordingly, the Complainant established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Since the Respondent has not replied to the Complainant’s contentions and, thus, has not presented any evidence or elements to justify any rights or legitimate interests in connection with the disputed domain name, the Panel has found no indication that any of the circumstances described in paragraph 4(c) of the Policy could apply to the present case.

Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)).

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists a number of circumstances that, without limitation, are deemed evidence of registration and use of a domain name in bad faith. Those circumstances include: “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”

The Panel finds it highly unlikely that the Respondent had no knowledge of the Complainant’s rights to the trademark HYPERION at the time of registration of the disputed domain name; on the contrary, the evidence shows that the Respondent was likely trying to create likelihood of confusion with the Complainant and its mark. This is even clearer considering that the disputed domain name was registered on November 7, 2019, that is, after the Complainant’s registrations of the trademarks HYPERION and the Complainant’s domain name <hyperionmt.com>.

Furthermore, by registering the disputed domain name, the Respondent has engaged in typosquatting, a practice by which “a registrant deliberately introduces slight deviations into famous marks” for commercial gain. The Respondent’s domain name is virtually identical to the Complainant’s HYPERION trademark – differing only by the changing of an “i” to an “l”.

Moreover, the Panel refers to the UDRP decision in ESPN, Inc. v. XC2, WIPO Case No. D2005-0444 (<espnnews.com>), as quoted below:

“It is well-settled that the practice of typosquatting, of itself, is evidence of the bad faith registration of a domain name. See, Longs Drug Stores Cal., Inc. v. Shep Dog, WIPO Case No. D2004-1069 (February 28, 2005) (Finding typosquatting to be evidence of bad faith domain name registration); Lexar Media, Inc. v. Huang, WIPO Case No. D2004-1039 (January 26, 2005) (“Typosquatting has been held under the Policy to be evidence of bad faith registration of a domain name”); Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816 (November 29, 2004) (“[typosquatting] is presumptive of registration in bad faith”). The fact that the Respondent has an extensive history of typosquatting only strengthens the inference of bad faith. MouseSavers, Inc. v. Tsung, WIPO Case No. D2004-1034 (February 1, 2005) (finding bad faith where Respondent was a “serial” typosquatter).”

Thus, the Panel concludes that the Respondent acts in bad faith for the following reasons: (i) the disputed domain name reproduces the Complainant’s HYPERION trademark and <hyperionmt.com> domain name; (ii) because the Respondent’s registration of the disputed domain name constitutes typosquatting, the disputed domain name is, by definition, confusingly similar to Complainant’s trademarks; and, (iii) the Respondent has no rights or legitimate interests in the disputed domain name.

Lastly, the Panel notes that, in conjunction with all of the abovementioned, the fact that the Respondent did not present any response to the Complaint reinforces the conclusion that the Respondent acted in bad faith.

Accordingly, the Panel concludes that the disputed domain name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.

As such, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy.

7. Decision

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 <hyperlonmt.com> be transferred to the Complainant.

Gabriel F. Leonardos
Sole Panelist
Date: March 16, 2020