WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sherweb Inc., 7958501 Canada Inc. v. WhoisGuard Protected, WhoisGuard Inc. / Victor Nwafor, sherweb
Case No. D2021-0803
1. The Parties
The Complainants are Sherweb Inc. and 7958501 Canada Inc., Canada, represented by Cabinet Juridique St. Lawrence SENCRL, Canada.
The Respondent is WhoisGuard Protected, WhoisGuard Inc., Panama, / Victor Nwafor, sherweb, Canada and Nigeria.
2. The Domain Names and Registrar
The disputed domain names, <sherwebs.com> (the “First Domain Name”) and <sherwebs.org> (the “Second Domain Name”) (together the “Domain Names”), are registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 17, 2021. On March 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On March 18, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 19, 2021, 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 March 22, 2021.
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 April 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 6, 2021. The Respondent did not submit any response. Accordingly, on May 7, 2021, the Center notified the parties that it was proceeding to Panel Appointment.
The Center appointed Tony Willoughby as the sole panelist in this matter on May 18, 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.
The Respondent used a privacy service when registering the Domain Names. The Respondent’s identity was disclosed by the Registrar in response to the Center’s registrar verification request. The Center’s invitation to the Complainant to amend the Complaint followed on from that disclosure. In response to that invitation the Complainant added the Respondent as an additional respondent to the Complaint. For the purposes of this decision the Panel treats the underlying registrant as the Respondent and all references herein to the “Respondent” are references to Victor Nwafor.
4. Factual Background
The Complainants, Sherweb Inc. and 7958501 Canada, are affiliated companies under common control. They are members of the Canadian Sherweb Group of Companies. Sherweb Inc. is the principal trading company with a website at “www.sherweb.com”. 7958501 Canada was formed as a holding company and is the registered proprietor of the Group’s SHERWEB trade mark registrations. One such registration is United States of America Trademark Registration No. 3,859,448 SHERWEB (standard character mark) registered on October 12, 2010, (application filed on November 20, 2009) in class 42 for “website hosting services; hosting the software, websites, and other computer applications of others on a computer server; application service provider, namely, hosting computer software and applications for others”.
The Panel deems it appropriate for present purposes to treat the two Complainant companies as one and all references to “the Complainant” are references to them jointly.
The Complainant describes itself as a cloud distribution company with over 800 employees, which has been operating under the “Sherweb” name since 1998.
The First Domain Name was registered on December 3, 2020. The Second Domain Name was registered on January 11. 2021. Neither Domain Name is currently connected to an active website.
The Complainant has produced evidence unchallenged by the Respondent and with documentary support to show that in the course of December 2020 and January 2021 several individuals have suffered at the hands of the Respondent who has been impersonating senior personnel employed by the Complainant. The innocent victims of this fraudulent exercise underwent interviews online with persons purporting to be employees of the Complainant. In the course of those interviews and in subsequent exchanges they were required to provide personal information. The victims have purportedly been offered jobs with the Complainant by the Respondent by way of emails from email addresses linked with the Domain Names (i.e. “firstname.lastname@example.org” and “email@example.com”). Some of the victims have received contracts purporting to be contracts of employment with the Complainant and featuring a forged signature of an employee of the Complainant. One of the victims, through an associated domain name, suffered financial loss as a result of the scam.
5. Parties’ Contentions
The Complainant contends that the Domain Names are confusingly similar to the Complainant’s SHERWEB trade mark and that the Respondent is using the Domain Names to perpetrate a fraud on potential applicants for jobs with the Complainant. The Complainant contends that such a use of the Domain Names cannot give rise to any rights or legitimate interests in respect of the Domain Names and clearly constitutes registration and use of the Domain Names in bad faith. The Complainant seeks transfer of the Domain Names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) the Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) the Domain Names have been registered and are being used in bad faith.
B. Identical or Confusingly Similar
The Domain Names each comprise the Complainant’s SHERWEB registered trade mark and an additional “s” followed by the generic Top-Level Domain identifier, “.com” in the case of the First Domain Name and “.org” in the case of the Second Domain Name.
Section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains the test for identity or confusing similarity under the first element of the Policy and includes the following passage:
“While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.”
The Complainant’s registered trade mark is readily recognizable in its entirety in both the Domain Names. The Panel finds that the Domain Names are confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The unchallenged evidence supplied by the Complainant, as set out in Section 4, demonstrates to the satisfaction of the Panel that the Respondent registered the Domain Names, knowing them to be misspellings of the Complainant’s SHERWEB trade mark, for use in a scam to impersonate the Complainant and obtain personal information from innocent third party job-seekers, who gave that information believing that they were dealing with the Complainant. False employment contracts with the Complainant were then issued featuring the forged signature of a senior employee of the Complainant.
On no basis could such an exercise give rise to rights or legitimate interests in respect of the Domain Names in the hands of the Respondent.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.
D. Registered and Used in Bad Faith
On the same basis the Panel finds that the Domain Names have been registered and are being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <sherwebs.com>, and sherwebs.org>, be transferred to the Complainant.
Date: May 18, 2021