WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arctoris Limited v. Miranda Chava
Case No. D2021-3164
1. The Parties
The Complainant is Arctoris Limited, United Kingdom, represented by Penningtons Manches LLP, United Kingdom.
The Respondent is Miranda Chava, Spain.
2. The Domain Name and Registrar
The disputed domain name <arctoriss.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2021. On September 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 28, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 28, 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 September 29, 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 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 21, 2021.
The Center appointed Kaya Köklü as the sole panelist in this matter on October 26, 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 company with its registered seat in the United Kingdom. It is internationally active in the field of automated drug discovery platform services.
The Complainant is the owner of the trademark ARCTORIS, which is registered in various jurisdictions. The Complainant is, inter alia, the registered owner of the International Trademark Registration No. 1415523 (registered on April 10, 2018), covering protection, among others, for various goods and services as protected in class 5 and 42 (Annex 4 to the Complaint).
Since at least 2015, the Complainant further owns and operates its official website at “www.arctoris.com”.
The disputed domain name was registered on August 18, 2021.
The Respondent is supposed to be an individual from Spain.
A screenshot, as provided by the Complainant (Annex 6 to the Complaint), shows that the disputed domain name is associated to a website with general information about a computer operating system without explicit reference to the Complainant or its ARCTORIS trademark. However, as evidenced in the Complaint, on August 18, 2021 (shortly after the registration of the disputed domain name) an email was sent from the address “[…]@arctoriss.com” to one of the Complainant’s clients with details of a bank account, requesting the recipient to pay an invoice. Probably for the purpose to fraudulently divert a payment, this email appeared in a chain of email in which an invoice payable to the Complainant by one of its clients was being discussed between employees of the Complainant and employees of the Complainant’s client (Annex 3 to the Complaint).
After obtaining knowledge of this attempt, the Complainant in vain sent a cease and desist letter to the above mentioned email address (Annex 7 to the Complaint).
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its ARCTORIS trademark.
It argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In addition, the Complainant is convinced that the Respondent has registered and is using the disputed domain name for fraudulent activities and, hence, in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark 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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein.
A. Identical or Confusingly Similar
To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of the ARCTORIS trademark, which is registered in various jurisdictions since at least 2018.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s ARCTORIS trademark. The disputed domain name fully comprises the ARCTORIS trademark. As stated at section 1.8 and 1.9 of the WIPO Overview 3.0, where a trademark is recognizable within the disputed domain name, the addition of other letters or terms would not prevent a finding of confusing similarity.
In the present case, the mere addition of the letter “s” does, in view of the Panel, not serve to avoid a finding of confusing similarity between the disputed domain name and the Complainant’s ARCTORIS trademark.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license or alike to use the Complainant’s ARCTORIS trademark in a confusingly similar way within the disputed domain name.
In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of a right or legitimate interest in the disputed domain name. On the contrary, the Panel finds on the available record that the disputed domain name was already used in connection with fraudulent activities.
In addition, the Panel notes that the nature of the disputed domain name carries a significant risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
Bearing all this in mind, the Panel does not see sufficient basis for assessing a bona fide offering of goods or services by the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel believes that the Respondent deliberately registered and used the disputed domain name in bad faith, particularly for the following reasons.
At the date of registration of the disputed domain name, the Respondent was obviously well aware of the Complainant and its ARCTORIS trademark. Based on the provided evidence within the case file, it is obvious to the Panel that the Respondent has monitored the Complainant’s employee’s email correspondence and registered the disputed domain name when an opportunity arose to fraudulently divert the payment of an invoice (Annex 3 to the Complaint). Consequently, the Panel is convinced that the Respondent has registered the disputed domain name in bad faith.
In this regard, the Panel further finds that the use of the disputed domain name for obviously fraudulent email communications constitutes a use in bad faith. In these circumstances, the Panel cannot conceive of any plausible and legitimate use of the disputed domain name that would be in good faith.
Overall, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 <arctoriss.com> be transferred to the Complainant.
Date: November 9, 2021