WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Saga Leisure Limited v. WhoisGuard Protected, WhoisGuard, Inc. / Barry Johnson
Case No. D2020-2526
1. The Parties
The Complainant is Saga Leisure Limited, United Kingdom, represented by Demys Limited (a Com Laude Group company), United Kingdom.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc, Panama. / Barry Johnson, United Kingdom.
2. The Domain Name and Registrar
The disputed domain name <sagasaving.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 30, 2020 naming the Respondent as WhoisGuard Inc.
The Center sent its request for registrar verification to the Registrar the same day. The Registrar replied the same day confirming that it had received a copy of the Complaint, that the Domain Name was registered with it and the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied, that a lock has been applied to the Domain Name and will remain in place during this proceeding, that the language of the registration agreement was English, and that the registration date of the Domain Name was July 13, 2020 and its expiration date is July 13, 2021.
However, the Registrar stated that WhoisGuard Inc is not the current registrant, whose details are masked in the public WhoIs, and provided the full contact details held on its WhoIs database. The Center forwarded this information to the Complainant on October 9, 2020, and invited the Complainant to amend the Complaint. The Complainant submitted an amended Complaint to the Center on October 9, 2020, adding the name of the registrant as provided by the Registrar as a Respondent. The Panel regards the registrant of the Domain Name as the true Respondent and references to the Respondent below refer to that registrant.
The Center verified that the amended Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the amended Complaint, and the proceedings commenced on October 13, 2020. In accordance with paragraph 5 of the Rules, the due date for Response was November 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 5, 2020.
The Center appointed Jonathan Turner as the sole panelist in this matter on November 10, 2020. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the amended Complaint complies with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant is a member of a group of connected companies trading under the mark SAGA and owns intellectual property rights used by the group. These including registrations of SAGA as a word mark in the United Kingdom (no. 2155218, filing date January 9, 1998) and the United States of America (no. 73373095, filing date July 6, 1982).
The Complainant’s group was founded in 1951 as a specialist provider of affordable holidays at off-peak times to people over the age of 50. It now provides travel, insurance, financial and healthcare services. It has over a million members in its membership programme and achieved a group turnover of GBP 800 million in 2019.
The Domain Name was registered by the Respondent on July 13, 2020 and has been used to send an email purporting to be from a member of the Complainant’s group offering to open an account and inviting the recipient to provide personal details. A website located by the Domain Name invited viewers to log into a portal by providing their email and password.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its SAGA mark which it contains in its entirety together with the descriptive term “saving” and the generic Top-Level Domain name suffix (“gTLD”).
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant points out that the Respondent’s use of the Domain Name for phishing as described above does not constitute a bona fide offering of goods or services, that the Respondent is not commonly known by the name SAGA or SAGA SAVING, and that the Domain Name has not been used for any legitimate noncommercial or fair use.
The Complainant alleges that the Domain Name was registered and is being used in bad faith for the purpose of phishing and disruption of the Complainant’s business.
The Complainant requests a decision that the Domain Name be transferred to it.
As stated above, the Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, to succeed in this Complaint, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it 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 is being used in bad faith. It is convenient to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s failure to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the mark SAGA by virtue of its registrations of this mark and its share of the group’s substantial goodwill under this mark. The Panel further finds that the Domain Name is confusingly similar to this mark. The Domain Name consists of the whole mark followed by the word “saving” and the gTLD “.com”. The latter two elements do not prevent a finding of confusing similarity; on the contrary, in view of the nature of the Complainant’s group’s business, the inclusion of the word “saving” affirms the Domain Name being confusingly similar. The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
The Panel finds on the undisputed evidence that the Domain Name has not been used for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. On the contrary, the use of the Domain Name made by the Respondent has been in bad faith, relying on the reputation of the Complainant’s mark to deceive members of the public into providing confidential personal information that could be used to carry out fraud and theft.
The Panel is also satisfied that the Respondent is not commonly known by the Domain Name or any corresponding name and that there is no other basis on which the Respondent could claim to have any right or legitimate interest in the Domain Name or any corresponding name.
The second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
As stated above, the Panel finds that the Respondent has used the Domain Name in bad faith, relying on the reputation of the Complainant’s mark to deceive members of the public into providing confidential personal information that could be used to carry out fraud and theft. It is reasonable to infer that the Domain Name was registered in bad faith for the same purpose.
The Panel further finds that the Respondent has used the Domain Name intentionally to attract Internet users to a web page for commercial gain from phishing as described above by creating a likelihood of confusion with the Complainant’s mark as to the source of the web page. In accordance with paragraph 4(b)(iv) of the UDRP this constitutes evidence of registration and use of the Domain Name in bad faith.
In these circumstances, the Panel is satisfied that the Domain Name was registered and is being used in bad faith.
All three requirements of the UDRP are satisfied and it is appropriate to order that Domain Name be transferred to the Complainant.
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, <sagasaving.com>, be transferred to the Complainant.
Date: November 23, 2020