WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CERBA v. Domain Administrator, Fundacion Privacy Services LTD
Case No. D2021-0284
1. The Parties
The Complainant is CERBA, France, represented by Scan Avocats AARPI, France.
The Respondent is Domain Administrator, Fundacion Privacy Services LTD, Panama.
2. The Domain Name and Registrar
The disputed domain name <cerbarsearch.com> is registered with Media Elite Holdings Limited dba Register Matrix (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 29, 2021. On January 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 30, 2021, 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, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 24, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 26, 2021.
The Center appointed Evan D. Brown as the sole panelist in this matter on March 9, 2021. 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 has been in business for more than 50 years and operates in the medical biology market in France and in other countries. It uses the mark CERBA and owns a number of trademark registrations for that mark, including French trademark registration No. 3161073, filed and registered on April 23, 2002. The disputed domain name was registered on December 4, 2020. The Complainant is also the registrant of the domain name <cerbaresearch.com> (registered on August 17, 2018). As described by the Complainant and supported by the record, the Respondent has used the disputed domain name to redirect to various third party websites, to seek to mislead and swindle Internet users by making them believe that access to their computer is blocked, or that it contains malware.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied, namely, that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the 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 Panel finds that the Complainant has established all three of these elements.
A. Identical or Confusingly Similar
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen, WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the CERBA mark by providing evidence of its trademark registrations. The disputed domain name incorporates the CERBA mark in its entirety. This is sufficient for showing confusing similarity under the Policy. The Panel finds that the Complainant has established this first element under the Policy.
B. Rights or Legitimate Interests
The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent.
On this point, the Complainant asserts, among other things, that:
- The Respondent is not currently and has never been known in connection with the CERBA mark, and there is nothing to suggest that the Respondent is commonly known by the disputed domain name.
- The Respondent has no business relationship with the Complainant, does not carry out any activity on its behalf and has not entered into any partnership with the Complainant.
- The Respondent has not entered into any license agreement or any other contract or agreement with the Complainant by which the Complainant would have authorized the Respondent to use the CERBA marks or to reserve any domain name bearing those marks.
- The Respondent is using the disputed domain name to redirect Internet users to various malicious sites intended to deceive and defraud internet users.
The Respondent has not introduced any of its own evidence to contradict these assertions. The Panel finds that the Respondent’s activity – as described by the Complainant and supported by the record – does not rise to the level of a bona fide use of the disputed domain name, nor does it meet any of the other criteria set out in the Policy that could show the Respondent’s rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has established, prima facie, that the Respondent lacks rights or legitimate interests in the disputed domain name, and the Respondent has not come forth with evidence to rebut that showing. The Panel finds that the Complainant has satisfied this second element of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that because of the longstanding use, and registration of, the Complainant’s marks, such marks are well known, and it is therefore more likely than not that the Respondent was aware of those marks when it registered the disputed domain name. Moreover, the Panel notes that the disputed domain name is a slight misspelling of the Complainant’s domain name <cerbaresearch.com>. In the circumstances of this case, the aforementioned is sufficient to establish bad faith registration of the disputed domain name. Bad faith use is clear from the Respondent’s activities of using the disputed domain name to engage in fraudulent activities as described above. For these reasons, the Panel finds that the Complainant has successfully met this third UDRP element.
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 <cerbarsearch.com> be transferred to the Complainant.
Evan D. Brown
Date: March 23, 2021