WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Alticor Inc. v. Domain Admin, Whois Privacy Corp.

Case No. D2021-4157

1. The Parties

The Complainant is Alticor Inc., United States of America (“United States” or “US”), represented by Baker & McKenzie, Ukraine.

The Respondent is Domain Admin, Whois Privacy Corp., Bahamas.

2. The Domain Name and Registrar

The disputed domain name <mall-way.com> is registered with TLD Registrar Solutions Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2021. On December 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 12, 2022, 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 January 12, 2022, 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 January 12, 2022.

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 January 13, 2022. In accordance with the Rules, paragraph 5, the due date for Response was February 2, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 7, 2022.

The Center appointed Nick J. Gardner as the sole panelist in this matter on February 11, 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

The Complainant is a US corporation which was founded in 1959. It trades as “Amway”. It is one of the world’s largest direct selling companies, and its product line is made up of more than 350 products, including cosmetics, skin-care products, hair-care products, dietary food supplements, nutritional foods, air and water treatment systems, detergents, all-purpose cleaners, and many others. Through a network of more than one million independent business owners (or “IBO”s), the Complainant distributes its products in 100 countries and territories worldwide, with global sales totaling over USD 8.4 billion for the 2019 performance year. The Complainant extensively uses and promotes its AMWAY trademark through advertising in various media, on the Complainant’s country-specific websites, and on social media sites such as Facebook, Twitter, and Instagram. Thus, the Complainant and its affiliates, commonly referred to collectively as Amway, has almost 430,000 followers on Facebook, nearly 373,000 followers on Instagram and some one million followers on Twitter. The Complainant’s products have also been recognized worldwide in many independent publications. As a result of the Complainant’s efforts, product sales, and press coverage, the AMWAY trademark has become well-known and respected by consumers in many countries around the world.

The Complainant owns over 750 active AMWAY trademark registrations in over 150 countries, including Ukraine, among which are:

- Ukrainian Trademark Registration No. 4423, registered on April 15, 1994, in respect of goods in classes 3, 5, 16, 21, 25, and services in class 35;

- Ukrainian Trademark Registration No. 42641, registered on August 16, 2004, in respect of goods in classes 3, 5, 10, 11, 16, 21, 29, 30, 32, and services in class 35;

- Ukrainian Trademark Registration No. 172590, registered on June 25, 2013, in respect of services in class 35;

- European Union Trademark Registration No. 000193888, registered on February 5, 1999 in respect of goods in classes 3, 5, 16, 21, 25, and services in class 35;

- United States Trademark Registration No. 72090731, registered on June 13, 1961 in respect of goods in class 3.

In this decision, the Complainant’s registered trademarks for the term AMWAY are collectively referred to as the “AMWAY trademark”.

The Complainant has a large online presence and it operates over 650 generic Top-Level (“gTLD”) domain names, including <amway.com> (registered on October 9, 1995), <amwayopportunity.com> (registered on December 4, 1997), <amwaylive.com> (registered on December 22, 1999), <amwayproduct.com> (registered on April 13, 2005), <amwayhome.com> (registered on May 12, 2010) and many others.

The Disputed Domain Name was registered on April 22, 2015 and resolves to a commercial website (the “Respondent’s Website”) where products under the AMWAY trademark are offered for sale. The Respondents Website prominently displays the Complainant’s proprietary stylised AMWAY logo and clearly is designed to give the impression that it is an official site operated by or with the approval of the Complainant.

The text on the Respondent’s Website appears to be written in Russian or Ukrainian and items appear to be priced in Ukrainian currency. Footer text on the landing page reads (if translated automatically online) as follows: “Amway is the world’s leading direct sales company”. The company was founded in 1959 in Ada, United States, Michigan. Today, offices are open in 80 countries around the world where you can order goods. In 2014, the global volume amounted to USD 11.8 billion.. Development, products of Amway, began in the middle of the last century and today Amway sells in 29 European countries, Ukraine is no exception. These organizations already employ 1,500 people. Since October 2011, the company in South America, India and our country has been headed by Samir Beihl, who received the status of Regional President. Three million Amwey entrepreneurs distribute offers from the catalog, 500,000 work in Europe. Amway Ukraine LLC has appeared on the Ukrainian market since 2003. Address of the central office: Kiev, Kazimir Malevich Street (Bozhenko), 87. Shopping centers are open in Kiev, Lviv, Odessa, Dnepropetrovsk. The alliance now employs 250,000 entrepreneurs. You can find more information at “www amway.ua [sic]”.

5. Parties’ Contentions

A. Complainant

The Complainant says that its AMWAY trademark has been used around the world from 1959; it is world-renown and, as such, is instantly recognizable brand globally. The AMWAY trademark became well-known long prior to the registration date of the Disputed Domain Name.

The Complainant says that the Disputed Domain Name is confusingly similar to the AMWAY trademark. The Complainant’s submissions on this issue are considered in detail below.

The Complainant further says that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name in view of the following.

The Respondent must be fully aware that the Trademark is a well-known global brand, owing to its fame and global advertising, marketing, and sales of Amway products all over the world by the Complainant exclusively under the Trademark;

The Complainant accepts that the Respondents Website does sell genuine AMWAY branded goods; however, it says these offerings may not be characterized as bona fide as the Respondent fails to satisfy criteria 1, 2, 3, and 4 as set out in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.

In particular the Complainant says:

- the Respondent is not affiliated with nor authorized by the Complainant to use the Trademark, including in the Disputed Domain Name, or to sell the Complainant’s product. The website under the Disputed Domain Name does not contain any indication that the Respondent is in any way affiliated or approved of by the Complainant;

- the Respondent is not a subsidiary of the Complainant nor is it one of the Complainant’s authorized Independent Business Owners;

- the Respondent’s Website contains a statement “КАТАЛОГ АМВЕЙ ОФИЦИАЛЬНЫЙ САЙТ” which translates into: “AMWAY CATALOGUE OFFICIAL SITE” which is untrue and misleading;

- the Respondent’s Website copies certain of the Complainant’s copyrighted graphics and the Disputed Domain Name itself misrepresents to visitors that it is, in fact, affiliated with the Complainant and its line of products sold under the AMWAY trademark;

- the Respondent does corner the market in the Disputed Domain Name that reflect the AMWAY trademark in the Ukrainian domain zone because the Disputed Domain Name fully incorporates the Trademark and substantially limits the alternative registrations in the Ukrainian domain zone for the Complainant’s official distributors in Ukraine; and

- the Respondent has not been commonly known by the Disputed Domain Name.

The Complainant further alleges that the Respondent has registered and is using the Disputed Domain Name in bad faith. The only purpose the Respondent could have for adopting the Disputed Domain Name would be to illegitimately profit from claiming incorrectly it has an association with the Complainant. The Respondent is clearly impersonating itself as a subsidiary or affiliate of the Complainant, when it is not.

The Respondent intentionally registered and uses the Disputed Domain Name, without consent from the Complainant, to confuse and mislead visitors to its website. The Respondent was put on actual notice of the Complainant’s rights in its Trademarks through the Complainant’s extensive prior use of the AMWAY trademark which long predate the Disputed Domain Name registration by the Respondent. Therefore, the Respondent knowingly and intentionally used the AMWAY trademark in violation of the Complainant’s rights in its Trademark.

Furthermore, the Respondent displays a list of trademarks registered by the Complainant on the front page of the website under the Disputed Domain Name. This confirms beyond any doubt that the Respondent is well aware of the Complainant’s rights in the AMWAY trademark.

The Respondent is using original marketing materials and images of the Complainant’s products on this website without the Complainant’s authorization which only adds to the finding that it is seeking commercial gain in bad faith. The fact that the Disputed Domain Name is connected to a website that is clearly intended to look like an official website of the Complainant in Ukraine strongly indicates opportunistic bad faith.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel does not consider that the question of whether the Disputed Domain Name is confusingly similar to the AMWAY trademark is immediately straightforward.

It is well established that the gTLD in this case “.com”, does not affect the disputed domain name for the purpose of determining whether it is identical or confusingly similar – see for example Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429. Accordingly the question is whether the term “mall-way” is confusingly similar to “amway”. Clearly each term ends with the three letters “way” which make up an ordinary English word and to that extent the terms are similar. The Disputed Domain Name commences with “mall” – itself an ordinary English word of US origin most commonly meaning a large enclosed shopping area from which motorised traffic is excluded. The AMWAY trademark commences with “am” – although apparently originally derived as an acronym of sorts for “american way” the term “am” is also an ordinary English word (being the first person singular present tense conjugation of the verb “to be” as in “I am English” and so on). The term “mall” contains the letters “a” and “m” but in a different order from their appearance in the term “amway”. It seems to the Panel doubtful that the term “mall-way” would be mistaken for the term “amway”.

The Panel has reviewed carefully the various arguments and authorities relied upon by the Complainant in its submissions as to why the Disputed Domain Name is confusingly similar to the AMWAY trademark. Some of them are less helpful than others. The Panel analyses each of the points the Complainant makes as follows.

The Complainant says that “It has been repeatedly held that if a complainant owns a registered trademark then it satisfies the threshold requirement of having trademark rights under paragraph 4 (a)(i) of the UDRP and can therefore challenge the validity of a domain name containing that trade mark” citing e.g., Thaigem Global Marketing Limited v. Sanchai Aree, WIPO Case No. D2002-0358. The Panel agrees with this statement in cases where the domain name contains the trademark relied upon or a substantial part of it. In WIPO Case No. D2002-0358 the trademark relied upon was “thaigem” and the domain name was <thaigem.net>. The difficulty in the present case is that <mall-way.com> does not include the term “amway” in its entirety.

The Complainant then says “the Domain Name incorporates the Complainant’s Trademark in its entirety, containing identical letters appearing in the same order as in the Complainant’s Trademark. It is accepted that when a domain name wholly incorporates a complainant’s registered trademark, that may be sufficient to establish confusing similarity (See, for instance, e.g., Facebook Inc. v. Private Registration / Denis Khakimov, WIPO Case No. DUA2019-0002; Eauto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047)”. The principle the Complainant states is correct but it is not applicable to the facts of the present case – the Disputed Domain Name does not contain identical letters in the same order as the Complainant’s trademark. In WIPO Case No. DUA2019-0002 the trademark relied upon was FACEBOOK and the domain name was <facebook.com.ua>. In WIPO Case No. D2000-0047 the trademark relied upon was EAUTO and the domain name was <eautolamps.com>.

The Complainant then says that the “.com” is an identifier for the gTLD. It provides an Internet locator and does not detract from the core element of the Disputed Domain Name, namely, the term AMWAY, which is identical to the Complainant’s well-known AMWAY brand. It is accepted that addition to trademarks of gTLD suffixes, in this case “.com”, may be disregarded when assessing the identity or similarity of a trade mark and a domain name (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11; Canyon Bicycles GmbH v. Domains by Proxy, LLC / Rob van Eck, WIPO Case No. D2014-0206, Andrey Ternovskiy dba Chatroulette v. DGM Domains, WIPO Case No. D2017-1345). The Panel agrees with this point. In WIPO Case No. D2014-0206 the trademark relied upon was CANYON and the domain name was <canyon.bike>. In WIPO Case No. D2017-1345 the trademark relied upon was CHATROULETTE and the domain name was <chatroulettegirls.org>.

The Complainant then says the fact of including a hyphen between the words ‘mall’ and ‘way’ does not make a sufficient difference between the domain name and the Complainant’s trademark, does not grant distinctiveness to the Disputed Domain Name in the present case and would not prevent a finding of confusing similarity under the first element as the consumer is likely to think that the contested domain name constitutes a variation of the AMWAY trademark owned by Complainant (see, e.g., Fort Knox National Company v. Ekaterina Phillipova, WIPO Case No. D2004-0281)”. The Panel agrees that a hyphen alone is unlikely to result in distinguishing two otherwise similar terms. In WIPO Case No. D2004-0281 the trademark relied upon was TRUEPAY and the domain name <true-pay.com>.

The Complainant then says “the mall-way.com domain name incorporates a confusingly similar approximation to Trademark AMWAY as it only provides an ‘m’ and ‘all’ instead of an ‘am’ in the Complainant’s trademark AMWAY. In many languages the pronunciation of ‘mall-way’ does not noticeably differ from the pronunciation of ‘amway’. Besides this the slightly different spelling is hardly recognizable for persons reading the name. Therefore, the difference is almost imperceptible phonetically and does not avoid a confusing similarity (see Sanofi v. Rohit Chawla, WIPO Case No. D2019-2490)”. The Panel does not agree that the pronunciation of “mall-way” and “amway” do not differ in English. The Panel does not know what the position might be in other languages. In WIPO Case No. D2019-2490 the trademark relied upon was SANOFI and the domain name was <fanofi.com>.

The Complainant then says “the mall-way.com domain name creates a direct semantical association between a dictionary word ‘mall’ and a dictionary word ’way’ (which is also a part of Trademark AMWAY) with the Trademark AWMAY, because the website under this domain name serves as a market place to sell Amway goods”. The Panel thinks that what the Complainant is getting at with this allegation is a suggestion that combining the word “mall” – which connotes a shopping facility – with the word “way” which is part of the Complainant’s trademark – is intended to indicate to consumers that the Disputed Domain Name has a connection with the Complainant. This seems to the Panel to have some force and the Panel returns to this suggestion below.

Finally the Complainant says that “Moreover, in view of the content of the website associated with the mall- way.com domain name it appears prima facie that the Actual Respondent seeks to target Trademark AMWAY through the mall-way.com domain name which confirms confusing similarity (See e.g. WIPO Overview 3.0, section 1.15, Harry Winston Inc. and Harry Winston S.A. v. Jennifer Katherman, WIPO Case No. D2008-1267, Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662)”. The Panel agrees with the principle that in some circumstances the content of a linked website may be relevant – see further the discussion below. In WIPO Case No. D2008-1267 the trademark relied upon was HARRY WINSTON and the domain name was <hairywinston.com>. In WIPO Case No. D2000-0662 the trademark relied upon was WAL-MART and the domain name was <wal-martsucks.com>.

So far as WIPO Overview 3.0 is concerned, it provides at section 1.7 as follows:

“What is the test for identity or confusing similarity under the first element?

It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name.

This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. (This may also include recognizability by technological means such as search engine algorithms.) In some cases, such assessment may also entail a more holistic aural or phonetic comparison of the complainant’s trademark and the disputed domain name to ascertain confusing similarity.

While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation, or a pattern of multiple respondent domain names targeting the complainant’s mark within the same proceeding, may support a finding of confusing similarity.”

Section 1.15 of WIPO Overview 3.0 (which is cited by the Complainant) is to similar effect – “In some instances, panels have however taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name”.

The Panel has adopted this approach in appropriate previous cases – see for example Match Group, LLC. v. Whois Privacy, Private by Design, LLC / Domain Administrator, See PrivacyGuardian.org / Ghassan Hedhli / Alicia Silverston, WIPO Case No. D2020-1085 where the trademark was TINDER and the domain names at issue were <threenderapp.net>, <tinder-site.com>, <3nderapp.net>, <threender.net>, and <tinderrencontre.net>.

The Panel thinks that in the present case the arguments in support of confusing similarity may not be immediately clear cut but ultimately fall in the Complainant’s favour. The Panel has no doubt the content of the Respondent’s Website (see above) clearly shows it is seeking to target the Complainant – the site bears the Complainant’s AMWAY logo in an unmistakably prominent position in its top banner (and moreover at the footer). The choice of the Disputed Domain Name is part of the targeting. The Panel can see there is some force in the argument that the combination of “mall” (indicating a large shopping facility) with “way” being a majority of the Complainant’s well known trademark (with the other letters being present in the word “mall”) is sufficient to raise an inference of confusing similarity, adopting the approach that the Respondent’s targeting of the Complainant (including by reference to the site content) tends to affirm confusing similarity in such cases. The Panel therefore concludes that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has not been fulfilled.

B. Rights or Legitimate Interests

The Panel finds the AMWAY trademark is, on the evidence before the Panel, a term in which the Complainant has developed a substantial reputation.

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:

(i) before any notice to the respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

It is not clear to the Panel when the Respondent’s Website first became available but given the Disputed Domain Name was registered in 2015 it seems likely to have been well before the present dispute and the Panel assumes that is the case. In these circumstances paragraph 4(c)(i) is potentially applicable if the Respondent’s website use is “bona fide”. It seems to the Panel that paragraph 4(c)(i) cannot simply apply if a business exists which has deliberately adopted a confusingly similar version of another person’s trademark as its name, otherwise the Policy would be inapplicable to all cases in which a respondent was operating a business, which is clearly not its intention. The words “bona fide” must encompass the Respondent’s knowledge and motives in choosing the name in question – if done deliberately to trade off, or take advantage of the Complainant’s name or reputation, then the “bona fide” requirement is not met.

Is this such a case? Given the Panel’s findings in relation to confusing similarity, and the rather obvious fact that the Respondent is targeting the Complainant and it's mark, the Panel concludes it is. At the very least the Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

It is however also necessary to consider the fact that on the evidence before the Panel the goods sold via the Respondent’s website are genuine products of the Complainant. Can the Respondent can claim to have a legitimate interest in using a domain name that is confusingly similar to the Complainant’s trademark in order to sell such genuine goods?

The Panel considers (and the Complainant in its submissions approached the case on this basis) that the starting point in addressing this question is the possible application of what is known as the Oki Data test (arising from the decision in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). The substance of the test is set out in paragraph 2.8.1 of WIPO Overview 3.0 as follows:

“2.8.1 Panels have recognized that resellers, distributors, or service providers using a domain name containing the complainant’s trademark to undertake sales or repairs related to the complainant’s goods or services may be making a bona fide offering of goods and services and thus have a legitimate interest in such domain name. Outlined in the ‘Oki Data test’, the following cumulative requirements will be applied in the specific conditions of a UDRP case:

(i) the respondent must actually be offering the goods or services at issue;
(ii) the respondent must use the site to sell only the trademarked goods or services;
(iii) the site must accurately and prominently disclose the registrant’s relationship with the trademark holder; and
(iv) the respondent must not try to ‘corner the market’ in domain names that reflect the trademark.

The Oki Data test does not apply where any prior agreement, express or otherwise, between the parties expressly prohibits (or allows) the registration or use of domain names incorporating the complainant’s trademark.”

In the present case the Panel notes that the Respondent is not one of an authorised IBO resellers of the Complainant’s products. In this regard it is in the Panel’s view relevant to note that the Oki Data case was concerned with the activities of authorised distributors and resellers who, by definition, will be in a contractual relationship with the complainant and where the complainant can if it wishes regulate the respondent’s activities accordingly. So the Panel in that case observed: “If trademark owners wish to prevent the use of their marks by authorized sales and repair agents in domain names, they should negotiate such protections through appropriate contractual language or, when permitted under the relevant law, seek recovery in classic trademark infringement or dilution litigations. In the absence, however, of some element of illegitimacy, they should not use the Policy to prevent uses that ICANN deemed to be legitimate, including the use of domain names in connection with the bona fide offering of goods and services.” The present case concerns an unauthorized distributor where no such contractual nexus exists. Panels have extended the Oki Data principles to unauthorized distributors as well, but in the opinion of this Panel whether it is appropriate to do so will depend on all of the facts including the nature of the business concerned and the domain name in question. However even if the Oki data principles are applicable to the present case they are not met. In particular on the evidence before the Panel, criteria (iii) above is not met in that the Respondent’s Website does not accurately and prominently disclose the Respondent’s relationship with the Complainant i.e., as being an unauthorised reseller of the Complainant’s products (assuming for the sake of argument they are genuine products). On the contrary especially with the prominent use of the Complainant’s logo, the Respondent’s Website masquerades as being a website operated by or with the authority of the Complainant.

In the present case the Panel is therefore satisfied that even if application of the Oki Data principles is appropriate they are not satisfied and accordingly do not give the Respondent the basis for claiming a legitimate interest in the Disputed Domain Name.

The Panel therefore considers that the Complainant has therefore established a prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003‑0455).

The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

The Panel finds that the Respondent has failed to produce any evidence to establish his rights or legitimate interests in the Disputed Domain Name. Accordingly the Panel finds the Respondent has no rights or any legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

Under the Policy paragraph 4b(iv) evidence of registration and use in bad faith is established where “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location”.

In the present case, that is what the Respondent has done. The Panel infers it selected the Disputed Domain Name because of its confusing similarity to the Complainant’s trademark and used it to link to the Respondent’s Website (which masquerades as being a website operated by or with the authority of the Complainant) in order to attract customers by creating a likelihood of confusion. In the circumstances the Panel concludes that paragraph 4(b)(iv) applies.

Further the Panel notes that the Respondent has not filed a Response and hence has not availed itself of the opportunity to present any case of good faith that it might have. The Panel infers that none exists.

As a result the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled.

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 <mall-way.com> be transferred to the Complainant.

Nick J. Gardner
Sole Panelist
Date: February 28, 2022