WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Amplitude SAS v. yulia ila, Yulia Inc, Sean Wang, and ghost mode

Case No. D2021-2626

1. The Parties

The Complainant is Amplitude SAS, France, represented by Hogan Lovells (Paris) LLP, France.

The Respondents are yulia ila, Yulia Inc, United States of America (“United States”), Sean Wang, United States, and ghost mode, Netherlands.

2. The Domain Names and Registrar

The disputed domain names <amplitude-laser.co>, <amplitude-lasers.com> and <amplltude-laser.com> are registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 11, 2021. On August 12, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 12, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 23, 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 amended Complaints on August 25, 2021 and on September 27, 2021.

The Center verified that the Complaint together with the amended Complaints 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 September 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 22, 2021.

The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on October 29, 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 French company created in 2001 with three manufacturing locations and several commercial offices in Europe, Asia and North America, employing 400 people. The Complainant’s group manufactures and commercializes ultrafast lasers for scientific, medical and industrial applications, offering a large range of products (including diode-pumped ultrafast solid-state lasers, ultra-high energy Ti:Sapphire ultrafast lasers, and a full line of high energy solid state laser products). The Complainant and its group operate under the trademark AMPLITUDE.

The Complainant, through its holding company Caravaggio Holding France SAS, has secured trademark registrations for AMPLITUDE in various jurisdictions, including the following:

- French Trademark Registration No. 4459973, AMPLITUDE, figurative, registered on June 8, 2018, in classes 7, 9, 10, 41 and 42;

- United States Trademark Registration No. 6191933, AMPLITUDE, figurative, registered on November 10, 2020, in classes 9, 41 and 42; and

- International Registration No. 1472418, AMPLITUDE, figurative, registered on December 7, 2018, in classes 7, 9, 10, 41 and 42, designating China, the European Union, Japan, the Republic of Korea, Switzerland, and the United States (collectively the “AMPLITUDE mark”).

The Complainant and its group further owns the domain name <amplitude-laser.com> (registered on August 1, 2007), which resolves to their main corporate website and which the Complainant uses for its corporate email addresses.

The disputed domain names are:

- <amplitude-laser.co> (“First Disputed Domain Name”), which was registered on June 3, 2021, and it is currently inactive resolving to an Internet browser error;

- <amplitude-lasers.com> (“Second Disputed Domain Name”), which was registered on May 4, 2021, and it is linked to a parked page displaying Pay-Per-Click (“PPC”) links to various third parties’ websites; and

- <amplltude-laser.com> (“Third Disputed Domain Name”), which was registered on March 22, 2021, and it is currently inactive resolving to an Internet browser error (collectively the “Disputed Domain Names”).

According to the evidence provided by the Complainant, at the time of filing the Complaint, the Disputed Domain Names were all three linked to parked pages displaying PPC links to various products including links to products that compete with the Complainant’s goods based around the keyword “laser”. Moreover, the Disputed Domain Names were also used in a fraudulent scheme impersonating the Complainant and targeting the Complainant’s customers.

5. Parties’ Contentions

A. Complainant

Key contentions of the Complaint may be summarized as follows:

The Disputed Domain Names are identical or confusingly similar to the Complainant’s trademarks. The First and the Second Disputed Domain Names comprise the term “amplitude” as their leading element, and the Third Disputed Domain Name includes a misspelling of the term “amplitude” as its leading element, whereby the letter “i” has been replaced with a letter “l”, resulting in the visually similar element “amplltude”. The AMPLITUDE mark is immediately recognizable in the Disputed Domain Names, and the inclusion of a hyphen together with the terms “laser” or “lasers” serves to confirm the confusing similarity, as these terms refer to the Complainant’s primary product, while the Disputed Domain Names mimic the Complainant’s official domain name <amplitude-laser.com>.

The Respondent has no rights or legitimate interests in respect of the Disputed Domain Names. The Respondent is not commonly known by the Disputed Domain Names, no evidence shows that it has acquired or applied for any trademark registrations for “amplitude”, “amplitude laser”, “amplitude lasers”, or any variation thereof, and it has no license or authorization to use the Complainant’s trademark. The Respondent is not using the Disputed Domain Names in connection with any bona fide offering of goods or services or in connection to any legitimate noncommercial or fair use. The Disputed Domain Names resolve to parked pages displaying PPC links to various products, including those that compete with the Complainant’s products, i.e., lasers, and the Disputed Domain Names have been used in a fraudulent online scheme, in an attempt to impersonate officers of the Complainant to induce Internet users into making payments for fictitious invoices to bank accounts that are not under the Complainant’s control. The composition of the Disputed Domain Names carries a high risk of implied affiliation reinforced by the fact that the Disputed Domain Names closely resemble the Complainant’s official domain name <amplitude-laser.com>. Internet users viewing the Disputed Domain Names are likely to be misled into believing that they are one of the Complainant’s official domain names.

The Disputed Domain Names were registered and are being used in bad faith. The AMPLITUDE mark has been continuously and extensively used since its launch, and it is well known throughout the world in connection with the Complainant’s laser technologies, reputation recognized in a number of awards. The Respondent could not credibly argue that it did not have knowledge of the Complainant and its trademark when registering the Disputed Domain Names in 2021. The Respondent’s intent to target the Complainant can be readily inferred from the contents of the emails sent using the Disputed Domain Names, which make prominent use of the AMPLITUDE mark attempting to impersonate officers of the Complainant in the furtherance of a fraudulent scheme. In the circumstances, the registration of the Disputed Domain Names using a privacy service to hide the Respondent’s identity, coupled with what appears to be the provision of false or incomplete underlying registrant details, may be considered further evidence of the Respondent’s bad faith. The Disputed Domain Names have been used in bad faith, to resolve to parking pages displaying PPC links to various products, including products in competition with those of the Complainant, and in a fraudulent scheme targeting the Complainant’s customers. The use of a domain name for per se illegal activity can never confer rights or legitimate interests on a respondent, such behavior is manifestly considered evidence of bad faith.

The Complainant has cited various decisions under the Policy and various sections of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”) that it considers supportive of its position, and requests the transfer of the Disputed Domain Names.

B. Respondent

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

6. Discussion and Findings

The Complainant has made the relevant assertions as required by the Policy and the dispute is properly within the scope of the Policy. The Panel has authority to decide the dispute examining the three elements in paragraph 4(a) of the Policy, taking into consideration all of the relevant evidence, annexed material and allegations, and performing some limited independent research under the general powers of the Panel articulated, inter alia, in paragraph 10 of the Rules.

A. Complaint Consolidated Against Multiple Respondents

The Complainant has requested the consolidation of the Complaint against multiple Respondents.

The Panel notes that the circumstances in this case indicate that the Disputed Domain Names are likely subject to a common control and the consolidation may be fair and equitable to the Parties. See section 4.11, WIPO Overview 3.0. In this respect, according to the allegations and evidence provided by the Complainant, the Panel notes that the Disputed Domain Names:

(i) have all been registered with the same Registrar and under the same privacy service;

(ii) were all registered in a relatively short timeframe of one another (between late March 2021 and early June 2021);

(iii) were all registered using apparently false or incomplete contact details;

(iv) at the time of submission of the Complaint to the Center, all of the Disputed Domain Names resolved to parking pages displaying PPC links;

(v) all the Disputed Domain Names follow a similar naming pattern; and

(vii) all of the Disputed Domain Names have been reported as being used in connection with the furtherance of a fraudulent email scheme, targeting the Complainant’s customers.

Accordingly, the Panel determines that it is equitable and fair to permit the requested consolidation.

B. Identical or Confusingly Similar

The Complainant indisputably has rights in the registered trademark AMPLITUDE, both by virtue of its trademark registrations and as a result of its global goodwill and reputation in the field of laser technologies.

The Disputed Domain Names incorporate the AMPLITUDE mark in its entirety (or an alteration of this mark, substituting the letter “i” with a letter “l”), adding a hyphen and the terms “laser” or “lasers”, which does not prevent a finding of confusing similarity. The Complainant’s trademark is recognizable in the Disputed Domain Names and the respective Top-Level-Domains (“TLDs”) “.co” or “.com” are technical requirements, generally disregarded for the purpose of the analysis of the confusing similarity. See sections 1.7, 1.8, 1.9, and 1.11, WIPO Overview 3.0.

Accordingly, this Panel finds that the Disputed Domain Names are confusingly similar to the Complainant’s trademark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied.

C. Rights or Legitimate Interests

Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, prior UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the Respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts to the Respondent the burden of coming forward with evidence of rights or legitimate interests in the Disputed Domain Names, once the Complainant has made a prima facie showing indicating the absence of such rights or legitimate interests.

The Complainant’s above-noted assertions and evidence in this case effectively shift the burden to the Respondent of producing evidence of rights or legitimate interests in the Disputed Domain Names, providing the circumstances of paragraph 4(c) of the Policy, without limitation, to rebut the Complainant’s prima facie case. However, the Respondent has not replied to the Complainant’s contentions.

A core factor in assessing fair use of the Disputed Domain Names is that they do not falsely suggest affiliation with the Complainant’s trademark. See section 2.5, WIPO Overview 3.0. The Disputed Domain Names incorporate the Complainant’s trademark (with no alteration or with a sole common misspelling, substituting the letter “i” with the letter “I”), adding terms (“laser” or “lasers”) that directly refer to the Complainant’s products and mimic the Complainant’s domain name <amplitude-laser.com>. Therefore, the Panel considers that there is a risk of implied affiliation.

Additionally, the Panel finds that the alteration of the AMPLITUDE mark in the Third Disputed Domain Name (substituting the letter “i” with the letter “I”), may be considered as a common misspelling pointing to an intention to confuse Internet users seeking for or expecting the Complainant. The altered letter used in the Third Disputed Domain Name “l” is adjacent to the letter “i” in any standard Roman alphabet keyboard, and it is visually identical to a capital letter “i”.

The Panel further considers that the Complainant has made out a strong prima facie case that the Respondent could not have rights or legitimate interests in the Disputed Domain Names, not being authorized to use the AMPLITUDE mark, and that the Disputed Domain Names have been used in connection to websites displaying PPC links to third parties’ websites (some related to the Complainant’s industry), and in the furtherance of a fraudulent scheme targeting the Complainant’s customers, which cannot be considered legitimate interests. See sections 2.9 and 2.13, WIPO Overview 3.0.

The Panel finds further remarkable that, at the time of drafting this decision, the First and the Third Disputed Domain Names are apparently inactive resolving to a page with an Internet browser error message, and that the Respondent has chosen not to reply to the Complaint. These circumstances leads the Panel to consider that the Respondent’s reaction to this Complaint has been taking down some of the websites that were linked to the Disputed Domain Names.

All the above-mentioned circumstances lead the Panel to conclude that nothing in the case file gives reason to believe that the Respondent has or has had any rights or legitimate interests in respect of the Disputed Domain Names. Therefore, the second element of the Policy under paragraph 4(a)(ii) has been established.

D. Registered and Used in Bad Faith

The Policy, paragraph 4(a)(iii), requires that the Complainant establish that the Disputed Domain Names have been registered and are being used in bad faith.

The applicable standard of proof in UDRP cases is the “balance of probabilities” or “preponderance of the evidence”, being the Panel prepared to draw certain inferences in light of the particular facts and circumstances of the case. See section 4.2, WIPO Overview 3.0.

The Panel notes the worldwide notorious character of the Complainant’s trademark in the laser industry, and its extensive presence over the Internet.

The Panel considers that all cumulative circumstances of this case point to bad faith registration and use of the Disputed Domain Names:

(i) the Disputed Domain Names incorporate the Complainant’s trademark in its entirety or with a sole common misspelling (substituting the letter “i” with an adjacent letter “l” in any standard Roman alphabet keyboard, visually identical to a capital letter “i”), adding terms referred to the Complainant’s industry (“laser” or “lasers”), which enhances the intrinsic likelihood of confusion;

(ii) the Disputed Domain Names mimic the Complainant’s domain name <amplitude-laser.com>, used since 2007 for the Complainant’s main corporate website and corporate email addresses;

(iii) the Complainant’s trademark is notorious in the laser industry and the Complainant operates internationally, including in the jurisdictions where the Respondent is apparently located according to the Registrar verification (the United States and the Netherlands);

(iv) according to the evidence provided by the Complainant, the Disputed Domain Names have been linked to websites displaying PPC links to third parties’ websites (some of them in sectors related to the Complainant’s industry);

(v) according to the evidence provided by the Complainant, the Disputed Domain Names have further been used in the furtherance of a fraudulent scheme targeting the Complainant’s customers;

(iv) the Respondent used a privacy registration service; and

(v) the Respondent has not offered any explanation of any rights or legitimate interests in the Disputed Domain Names, and has not come forward to deny the Complainant’s assertions of bad faith, choosing not to reply to the Complaint, and apparently taking down some of the websites that were linked to the Disputed Domain Names.

It is further to be noted that the current apparent non-use of the First and the Third Disputed Domain Names does not prevent a finding of bad faith under the doctrine of passive holding. See section 3.3, WIPO Overview 3.0.

In light of the above, taking into consideration all cumulative circumstances of this case, on the balance of probabilities, the Panel considers that the Disputed Domain Names were registered and are being used targeting the AMPLITUDE mark in bad faith, with the intention of free riding on the established reputation of the Complainant’s trademark by intentionally misleading third parties, in order to generate traffic to promotional PPC links websites with a commercial purpose, and in the furtherance of a fraudulent scheme targeting the Complainant’s customers.

Accordingly, the Panel concludes that the Complainant has met its burden of establishing that the Disputed Domain Names have been registered and are being used in bad faith under 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 Names, <amplitude-laser.co>, <amplitude-lasers.com> and <amplltude-laser.com>, be transferred to the Complainant.

Reyes Campello Estebaranz
Sole Panelist
Date: November 4, 2021

¹ Various Respondents have been indicated in the Registrar verification as the respective registrant of record for each of the disputed domain names. In view of the case file, the Panel will consider and refer to all of them, indistinctively as the Respondent (unless otherwise indicated when referring individually to one of them).