WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bynk AB v. Kingsley Stone, Keystone Inc.
Case No. D2021-3592
1. The Parties
The Complainant is Bynk AB, Sweden, represented by Ports Group AB, Sweden.
The Respondent is Kingsley Stone, Keystone Inc., United States of America.
2. The Domain Names and Registrar
The disputed domain names <rockerpayinfo.org> and <rockerpay.org> are registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 27, 2021. On October 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 28, 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 November 3, 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 amended Complaint on November 3, 2021.
The Center verified that the Complaint together with the amended 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 November 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2021.
The Center appointed Adam Taylor as the sole panelist in this matter on December 14, 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 operates a mobile app for loans known as “Rocker”.
The Complainant’s website is located at “www.rocker.com”.
The Complainant owns a number of registered trade marks for ROCKER including European Union Trade Mark No. 018171880, filed on December 23, 2019, registered on May 22, 2020, in classes 9, 36 and 45.
The disputed domain name <rockerpayinfo.org> was registered on May 31, 2021, and the disputed domain name <rockerpay.org> was registered on July 16, 2021.
Neither of the disputed domain names currently resolves to an active webpage.
The Complainant sent cease and desist letters on August 9, 2021, in relation to <rockerpayinfo.org>, and on August 11, 2021, in relation to <rockerpay.org>. There was no response to either.
5. Parties’ Contentions
The disputed domain names consist of the Complainant’s distinctive trade mark, which is clearly recognisable, in addition to the terms “pay” and “payinfo”. The disputed domain names are therefore confusingly similar to the Complainant’s trade marks.
The Respondent has no rights or legitimate interests in respect of the disputed domain names.
The Complainant has not authorised the Respondent to use its trade mark.
Screenshots and source code from the websites at the disputed domain names show that they have been used illegitimately “to make clear connections” to the Complainant’s good and services and to profit by misleading consumers seeking information about the Complainant.
There is no evidence that the Respondent has been commonly known by the disputed domain names or is making a legitimate non-commercial or fair use of the disputed domain names.
The disputed domain names were registered and are being used in bad faith.
The Complainant’s registered and unregistered trade mark rights arose well before the Respondent registered the disputed domain names, thereby implying knowledge of the Complainant’s marks and business.
The use of the websites at the disputed domain names, and the Complainant’s mark, to mislead and profit from visitors is a further indicator of bad faith.
The Respondent has not attempted to prevent confusion by making clear that is not the trade mark owner.
The Respondent’s failure to respond to the Complainant’s cease and desist letters is also evidence of bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under the Policy, the Complainant is required to prove on the balance of probabilities that:
- the disputed domain names are identical or confusingly similar to a trade mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
- the disputed domain names have been registered and are being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has established rights in the mark ROCKER by virtue of its registered trade marks.
Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that, where the relevant trade mark is recognisable within the disputed domain name, the addition of other terms, whether descriptive or otherwise, would not prevent a finding of confusing similarity under the first element.
Here, the Complainant’s distinctive trade mark is readily recognisable within the disputed domain names and, accordingly, the addition of the descriptive terms “pay” and “payinfo” do not prevent a finding of confusing similarity.
For the above reasons, the Panel concludes that the disputed domain names are confusingly similar to the Complainant’s trade mark and that the Complainant has therefore established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
As explained in section 2.1 of WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests.
As to paragraph 4(c)(i) of the Policy, there is no evidence of any use of the disputed domain names for a bona fide offering of goods or services, nor of any demonstrable preparations for such an offering.
Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case.
The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
For the above reasons, the Panel concludes that the Complainant has established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant has supplied a mixture of web pages, folder-list and source code screenshots, but these have not been translated or explained and the Panel does not find them easy to follow. It appears that, at one point, the disputed domain names resolved to login pages in Swedish with the Complainant’s logo. While the Complainant does not elaborate, the Panel does not find that the screenshots amount to evidence of legitimate use of the disputed domain names.
As mentioned above, neither of the disputed domain names currently resolves to an active webpage. Furthermore, the Panel has visited the Wayback Machine1 but has not found any historic evidence of active, let alone legitimate, use of either of the disputed domain names as a website.
In these circumstances, the Panel has decided to consider this case in the context of the principles of “passive holding”.
Section 3.3 of the WIPO Overview 3.0 explains that, from the inception of the UDRP, panels have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding.
In this case, the Panel considers that the following cumulative circumstances are indicative of passive holding in bad faith: (i) the distinctiveness of the Complainant’s mark, (ii) the failure of the Respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, and (iii) the implausibility of any good faith use to which the disputed domain names may be put, in particular given that the inclusion of “pay” in each disputed domain name, in addition to the trademark ROCKER, is strongly referable to the Complainant’s services.
For the above reasons, the Panel considers that the Complainant has established the third element of paragraph 4(a) 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 names <rockerpayinfo.org> and <rockerpay.org> be transferred to the Complainant.
Date: December 21, 2021
1 Panels may undertake limited research into matters of public record, including review of historical resources to see how the disputed domain name may have been used in the past - see section 5.8 of WIPO Overview 3.0.