WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Yousty AG v. David Mark Baddeley, Paloma Digital Limited
Case No. D2021-3756
1. The Parties
Complainant is Yousty AG, Switzerland, represented by epartners Rechtsanwälte, Switzerland.
Respondent is David Mark Baddeley, Paloma Digital Limited, United Kingdom1 .
2. The Domain Name and Registrar
The disputed domain name <professionalch.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 9, 2021. On November 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 10, 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 Complainant on December 1, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 6, 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 Respondent of the Complaint, and the proceedings commenced on December 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 30, 2021. Respondent did not submit any response. Accordingly, the Center notified the Parties of Respondent’s default on January 10, 2022.
The Center appointed Ingrīda Kariņa-Bērziņa as the sole panelist in this matter on January 20, 2022. 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
Complainant operates a job search platform in Switzerland at the domain name <professional.ch>. It is the proprietor of Swiss trademark registration no. 743349 for PROFESSIONAL.CH (device mark), registered on September 25, 2019 for goods and services in classes 16, 35, 38, 41, and 42.
The disputed domain name was registered on April 16, 2021. Due to browser security settings, the Panel was unable to access the website. The evidence in the case file demonstrates that the disputed domain name resolves to a website that mirrors Complainant’s website and displays Complainant’s mark.
5. Parties’ Contentions
Complainant’s contentions may be summarized as follows:
Under the first element, Complainant states that it operates a well-known and well-established job search platform in Switzerland at the domain name <professional.ch>. It has registered its PROFESSIONAL.CH mark in Switzerland. The disputed domain name is deliberately confusingly similar to Complainant’s mark.
Under the second element, Complainant states that the website operated by Respondent at the disputed domain name is a deliberate copy of Complainant’s job search portal. Its only purpose is to deceive, and likely defraud users of Complainant’s website by redirecting them to Respondent’s site. For that purpose, it uses Complainant’s branding and logo and its registered trademark. Respondent is not known by the disputed domain name, is not making any legitimate use of the disputed domain name and does not use the disputed domain name in connection with a bona fide offering of goods or services.
Under the third element, Complainant states that the domain name was registered and is being used in bad faith in a case of domain spoofing and, presumably, attempted fraud. Respondent uses the disputed domain name to hijack Complainant’s website in an attempt to redirect Internet users to Respondent’s website without users noticing the redirection. Respondent intentionally imitates Complainant’s legitimate website, causing harm to Complainant’s business. Respondent’s actions are illegal and improper and presumably serve to engage in unlawful phishing activities.
Complainant requests transfer of the disputed domain name.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the UDRP requires Complainant to make out all three of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) Respondent has registered and is using the disputed domain name in bad faith.
A. Identical or Confusingly Similar
Complainant has provided evidence establishing that it has trademark rights in the PROFESSIONAL.CH mark through registration in Switzerland. Complainant thereby satisfies the threshold requirement of having trademark rights for purposes of standing to file a UDRP case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.2.1.
In comparing Complainant’s marks with the disputed domain name, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark. The disputed domain name comprises Complainant’s mark, differing only by the lack of a period separating “professional” and “ch.” It is the consensus view of UDRP panels that, where a domain name is an obvious misspelling of a trademark, the domain name is considered confusingly similar to the relevant mark for purposes of the first element. See WIPO Overview 3.0, section 1.9.
It is the well-established view of UDRP panels that the Top-Level Domain “.com” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test (see WIPO Overview 3.0, section 1.11.1, and cases cited thereunder).
Accordingly, the Panel finds that Complainant has established the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Panel finds that the evidence submitted by Complainant establishes a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not authorized by Complainant and has no rights in the PROFESSIONAL.CH mark. The disputed domain name reflects a deliberate misspelling of Complainant’s mark.
Pursuant to WIPO Overview 3.0, section 2.1, and cases thereunder, where Complainant makes out a prima facie case that Respondent lacks rights or legitimate interests, the burden of production on this element shifts to Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name.
Respondent has not proved rights or legitimate interests. There is no evidence that Respondent is commonly known by the disputed domain name, nor that there are any circumstances or activities that would establish Respondent’s rights therein. The disputed domain name redirects to a website that is a near copy of Complainant’s site, including Complainant’s logo. The Panel is satisfied that such redirection has been created with the intention of diverting Internet users seeking information about Complainant. Such use can never confer rights or legitimate interests. See WIPO Overview 3.0, section 2.13.1, and cases cited thereunder.
Therefore, the Panel finds that Complainant has established the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that Complainant has demonstrated Respondent’s bad faith registration and use of the disputed domain name. Complainant’s rights in its PROFESSIONAL.CH mark predate the registration of the disputed domain name. The disputed domain name reflects Complainant’s mark in its entirety, with the lack of a “.”, which Internet users might easily overlook, which is clearly an example of typosquatting. The Panel finds that such a registration creates a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4., describing the types of evidence that may support a finding of bad faith.
The Panel finds that Respondent has demonstrated bad faith use of the disputed domain name. The evidence on record supports a finding that Respondent has demonstrated bad faith in establishing a website that closely resembles Complainant’s website. The evidence supports a finding that Respondent registered and is using the disputed domain name to intentionally attempt to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant’s mark. Moreover, Respondent’s website contains numerous indicia of fraudulent activity, including Complainant’s mark, logo, images, layout and type of content. Such conduct is emblematic of bad faith use of the disputed domain name. See WIPO Overview 3.0, section 3.1.4. See also Patagonia Provisions, Inc. v. WhoisAgent, Domain Protection Services, Inc. / Sam Jarsky, Lasuda Inc, WIPO Case No. D2020-0263; Wal-Mart Stores, Inc. v. Steve Powers, WIPO Case No. D2003-1051.
The Panel therefore finds that Complainant has established the third element under 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 name <professionalch.com> be transferred to Complainant.
Date: February 3, 2022
1 The Panel notes that WhoIs information provided by Complainant reflects that Respondent had employed a privacy service. Respondent in this case is identified as the underlying registrant as confirmed by the Registrar.