WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Ontario Power Generation Inc. v. Linney Leensey

Case No. D2021-1218

1. The Parties

The Complainant is Ontario Power Generation Inc., Canada, represented by Dentons Canada LLP, Canada.

The Respondent is Linney Leensey, India.

2. The Domain Name and Registrar

The Disputed Domain Name <ontarioopowergeneration.com> is registered with Domainshype.com, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2021. On April 21, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 22, 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 April 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 18, 2021.

The Center appointed Colin T. O'Brien as the sole panelist in this matter on May 25, 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 is a power producer in North America and owner of a number of facilities in Ontario, Canada, and the United States of America (“United States”). The Complainant was established under the Business Corporations Act (Ontario) and is wholly owned by the Province of Ontario, Canada. The Complainant is one of the largest electricity generator in the Province of Ontario and most diverse generator of electricity in North America.

The Complainant owns the following registered trademark in Canada:

ONTARIO POWER GENERATION word mark (Reg. No. TMA627548, Registered on December 6, 2004 ) for design, construction, operation and maintenance of power generating facilities and equipment and the wholesale and retail marketing and sale of power services.

The Complainant has used the ONTARIO POWER GENERATION corporate name and trademark comprised of or incorporating the words “ONTARIO POWER GENERATION” for over 22 years.

The Respondent registered the Disputed Domain Name on December 19, 2020. The Disputed Domain Name currently resolves to an inactive website.

The Complainant has no legal or other relationship with the Respondent and has never authorized the Respondent to use the ONTARIO POWER GENERATION trade name or trademark in the Disputed Domain Name or otherwise by permission, lease, agreement, license or other legal instrument.

5. Parties’ Contentions

A. Complainant

The Disputed Domain Name is nearly identical in appearance, sound and idea suggested to the Complainant’s trade name and registered and official mark. The only difference between the Respondent’s Disputed Domain Name and the Complainant’s trademark is the purposeful addition of the letter “o” between the first and second words in the Complainant’s trademark.

The Complainant’s trademark can be easily recognized within the Disputed Domain Name as the Complainant’s trademark is the dominant or principal component of the Disputed Domain Name. This conduct, commonly referred to as "typosquatting", creates a virtually identical and/or confusingly similar mark to the Complainant’s trademark.

The Disputed Domain Name is likely to be mistaken for the Complainant’s trademarks or trade name and there is a clear risk that Internet users may actually believe there to be a real connection between the Disputed Domain Name and the Complainant and/or the Complainant’s services.

The Complainant acquired the rights in its trademark long before the registration date of the Disputed Domain Name and the Complainant continues to have such rights.

There is no indication or “demonstrable preparations” showing that the Respondent intends to use the Disputed Domain Name in connection with a bona fide offering of goods or services. In addition, the Disputed Domain Name is inactive.

The Respondent is not known by the Disputed Domain Name and cannot be known by such name. The Respondent resides in India and the Disputed Domain Name includes the geographical word “Ontario”, a Province of Canada. It is highly unlikely that the Respondent would be known in India by such a name. The Respondent is not using the Disputed Domain Name for any bona fide purpose or with the permission of the Complainant. The Respondent has no affiliation with the Complainant and its use of the Disputed Domain Name cannot be considered “fair” when it falsely suggests such an affiliation with the Complainant. UDRP anels have found that domain names identical to a complainant’s trademark carry a high risk of implied affiliation.

The Respondent has no rights in registering the Disputed Domain Name and the Complainant has never granted the Respondent any rights to use the ONTARIO POWER GENERATION trademark or any misspellings or variations of its trade name or marks.

The Disputed Domain Name is currently inactive and the Respondent has no legitimate reason to use it except (1) to divert Internet users who may mistakenly type an additional letter “o” when trying to reach the search for the Complainant or (2) to fraudulently impersonate one of the Complainant’s employees or representatives as the Respondent has done in previous cases, in relation to other disputed domain names.

The Respondent’s conduct and history with registering other clearly confusing similar domain names clearly indicates an attempt to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark as to the source, affiliation, or endorsement of the Respondent’s website, which constitutes bad faith.

The Disputed Domain Name reproduces the Complainant’s trademark in its entirety, and merely incorporates one extra letter within, which is a duplication of a preceding letter in the name, and which can easily be entered as a typo by an Internet user attempting to reach the Complainant. Such a misspelling can be easily mistyped when searching for the Complainant, or easily overlooked when receiving an email from the Disputed Domain Name.

The Respondent’s registration of the nearly identical Disputed Domain Name, without any rights to or legitimate interests in it, and in the absence of any conceivable good faith use, creates a strong presumption of bad faith.

Given the nearly identical spelling of the Disputed Domain Name to the Complainant’s registered trademark, and the well-known trade name of the Complainant, it is highly improbable that the Respondent did not know about the Complainant or did not research the Complainant, its trademarks and business, at the moment of registration of the Disputed Domain Name.

The Respondent, was a respondent in previous UDRP proceedings, where the UDRP panels found that disputed domain names registered by the Respondent were used to send fraudulent emails impersonating one of the complainant’s employees, and used in association with the third party well-known trademark (as “IBM”) to offer financial services.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has demonstrated that it owns registered trademark rights in the ONTARIO POWER GENERATION mark and has shown that no other entity has rights in or uses the Complainant’s marks. The Complainant has also demonstrated that the public associates its services in connection with certification programs. The misspelling of “Ontario” in <ontarioopowergeneration.com> does not avoid a finding that the Disputed Domain Name is confusingly similar with the ONTARIO POWER GENERATION mark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9, and Humana Inc. v. Cayman Trademark Trust, WIPO Case No. D2006-0073.

The Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has presented a prima facie case that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Dame and has not at any time been commonly known by the Disputed Domain Name.

After a complainant has made a prima facie case, the burden of production shifts to the respondent to present evidence demonstrating rights or legitimate interests in the domain name. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.

Here, the Respondent has provided no evidence of any rights or legitimate interests in the Disputed Domain Name; rather, the evidence suggests that it was registered to make an undue profit based on the Complainant’s rights. See, e.g., Bottega Veneta SA v. ZhaoJiafei, WIPO Case No. D2013-1556.

In the absence of any evidence rebutting the Complainant’s prima facie case indicating the Respondent’s lack of rights or legitimate interests in respect of the Disputed Domain Name, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Disputed Domain Name was registered many years after the Complainant first registered and used its ONTARIO POWER GENERATION trademark and name. The evidence on the record provided by the Complainant with respect to the extent of use of its ONTARIO POWER GENERATION trademark, combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy the Panel that, at the time the Disputed Domain Name was registered, the Respondent undoubtedly knew of the Complainant’s ONTARIO POWER GENERATION mark, and knew that it had no rights or legitimate interests in the Disputed Domain Name.

There is prima facie no reason for the Respondent to have registered the Disputed Domain Name containing a misspelling of the ONTARIO POWER GENERATION trademark. Given the specific geographical reference of the Complainant’s ONTARIO POWER GENERATION trademark the Respondent based in India most likely knew of the Complainant’s trademark and knew that it had no rights or legitimate interests in the Disputed Domain Name.

While the Disputed Domain Name does not resolve to an active website there is ample evidence of bad faith use on the part of the Respondent. UDRP panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. See section 3.3 of the WIPO Overview 3.0.

Furthermore, the Complainant has demonstrated that Respondent has been engaged in a pattern of bad faith registration and use of domain names. See, e.g. International Business Machines Corporation v. Linney Leensey and Brizees Martins, WIPO Case No. D2019-0310. This Panel further finds that given the distinctive Complainant’s trademark there is only market of one who would wish to purchase the Disputed Domain Name. The only rational explanations for the registration and use of the Disputed Domain Name is to either use it in an attempt to create an email phishing scam or to sell it to the Complainant. Neither of which constitute good faith.

Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith, and 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 <ontarioopowergeneration.com> be transferred to the Complainant.

Colin O’Brien
Sole Panelist
Date: May 28, 2021