WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bharti Airtel Limited v. Tushar Sarin / Rockerzz
Case No. DCO2015-0015
1. The Parties
The Complainant is Bharti Airtel Limited of New Delhi, India, represented by Vutts & Associates LLP, India.
The Respondent is Tushar Sarin / Rockerzz of Uttar Pradesh, India.
2. The Domain Name and Registrar
The disputed domain name <airtei.co> was registered with GoDaddy.com, LLC (the “Registrar”) on July 9, 2014 and is set to expire on July 9, 2015. The Registrar had, for the pendency of the present administrative proceeding, locked the disputed domain name.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2015. On the same date the Center transmitted by email to the Registrar, a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and the contact details of the Respondent as registered.
The Center verified that 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 paragraph 2(a) and 4(a) of the Rules, the proceedings formally commenced on April 21, 2015, the date when the Center formally notified the Respondent of the Complaint via email and courier. In accordance with the paragraph 5(a) of the Rules, the due date for sending a Response was May 11, 2015, but the Respondent did not comply with the timeline to submit the response and accordingly on May 13, 2015, the Center notified the Respondent of its default and moved forward with appointing a panelist to decide the present dispute under paragraph 8(c) of the Supplemental Rules.
The Center appointed Pravin Anand as the sole panelist in this matter on May 26, 2015. 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
A. The Complainant
The Complainant, Bharti Airtel Limited, was established as “Bharti Tele-Ventures Ltd.” in 1995 and today claims to be one of the top 4 wireless telecom operators in the world. The Complainant is the owner of the trademark AIRTEL, AIRTEL MONEY and AIRTEL formative marks. According to the Complainant, it has built and sustained a customer base of over 300 million subscribers through its presence in the telecommunications industry in over 20 countries in Asia and Africa. The Complainant is mostly recognised for its offering of telecommunication services, which include 2G, 3G, 4G wireless services, mobile commerce, fixed line services, high speed DSL broadband, IPTV, DTH along with enterprise services including national and international long distance services to carriers.
B. Complainant’s Domain Names
The Complainant operates through various domain names that are accessible all over the over the world, such as <airtel.in> (registered on January 6, 2005) and <airtel.com> (registered on February 13, 2010). The Complainant offers all its services through the aforementioned website domain names, along with options for making payments for those services. Therefore, the Complainant is also entrusted with certain sensitive financial information of each of its subscribers that avail themselves of such services.
C. Complainant’s Trademark Registrations
The Complainant has been active in protecting its proprietary rights in its AIRTEL, AIRTEL MONEY and AIRTEL formative trademarks. The Complainant has relied on several trademark registrations worldwide details of which are as follows:
i. The earliest registration for AIRTEL in India dates back to 1995 and 1997 for a word mark and device, respectively under class 9. The mark was subsequently registered under class 38 in 2003.
ii. The word mark AIRTEL MONEY has also been registered in India under classes 36 and 38 since 2010.
iii. The trademark AIRTEL and AIRTEL TALK has several registrations dating back to 2008 under various classes in many countries such as United States of America, United Kingdom of Great Britain and Northern Ireland, United Arab Emitrates, Singapore, etc.
D. Enforcement of Rights by the Complainant
The Complainant has also secured a plethora of judicial and quasi-judicial pronouncements/adjudications upholding its AIRTEL and AIRTEL formative trademarks and domain names in a myriad of fora including UDRP decisions. The same have been relied upon by the Complainant and enumerated as:
i. Bharti Airtel Limited, Bharti Enterprises, Bharti Global Limited v. Marketing Total S.A., WIPO Case No. D2007-0734 <bhartiairtel.com>;
ii. Bharti Airtel Limited, Body Corporate v. Ramandeep Singh, USA Webhost, Inc., WIPO Case No. D2010-0524 <airtel.com>;
iii. Bharti Airtel Limited v. Hashid Hameed, DesiDen, WIPO Case No. D2014-0294 <airtelguru>.
E. The Present Dispute
On April 13, 2015, the Complainant received an email from a customer who informed the Complainant about the disputed domain name <airtei.co>. The Complainant took remedial steps to address, protect and enforce its in trademark rights in its AIRTEL and AIRTEL formative marks, by lodging a criminal complaint, by making a complaint to the Indian Computer Emergency Response Team (ICERT), by sending a legal notice (dated April 15, 2015) and finally by filing the present complaint for transfer of the disputed domain name.
5. Parties’ Contentions
The Complainant has laid down the following contentions:
i. The Complainant’s trademark AIRTEL is an invented word and a well-known mark having a high degree of recognition amongst the public.
ii. The Complainant is the prior user of the AIRTEL and AIRTEL formative marks.
iii. The Respondent is using an identical / deceptively similar mark on the disputed domain name.
iv. The Respondent is relying on common misspellings (typos) of the Complainant’s mark, i.e. substituting the “L” in AIRTEL with an “I”, to appear confusingly similar to the Complainant’s website “www.airtel.com”. The disputed domain name appearing as <airtei.co>.
v. The Respondent has full knowledge of the Complainant’s reputation and goodwill in its AIRTEL and AIRTEL formative trademarks, therefore the registration of the disputed domain name is intentional and not an inadvertent act.
vi. The Complainant and the Respondent have no commercial relationship legitimising the Respondent’s use of AIRTEL and/or AIRTEL formative trademarks for commercial purposes.
vii. Respondent’s motive for registering the disputed domain name is to masquerade as the Complainant and engage in such activities which would:
a. Cause confusion by luring innocent customers of the Complainant into revealing their financial information for the Respondent’s own commercial gain.
b. Use the Complainant’s trademarks and increase the traffic on the disputed domain name, thereby also increasing the monetary worth of the same.
c. Disrupt and cause harm to the Complainant’s business by relying on consumer confusion through the use of a trademark deceptively similar to that of the Complainant.
viii. The Respondent is not legitimately using the disputed domain name in accordance with paragraph 4(c)(i), paragraph 4(c)(ii) and paragraph 4(c)(iii) of the Policy.
ix. Apart from the payment gateway, there is no visual difference in the user interface of the disputed domain name when compared to that of the Complainant’s website “www.airtel.in”.
xx. The Respondent registered the disputed domain name in bad faith as per paragraph 4(a)(iii) of the Policy.
The Respondent did not reply to the Complainant’s contentions in the Complaint.
6. Discussion And Findings
The Respondent in the present dispute has failed to respond to the Complaint within the prescribed timeline. Therefore, in accordance to paragraph 5(e) of the Rules read with paragraph 14(a) and paragraph 14(b) of the Rules the Panel finds that the present dispute is fit to be decided on the contentions featured in the Complaint.
Further, since it is up to the Complainant to make out a case which satisfies the elements of paragraph 4(a) of the Policy to obtain a favorable decision, the Panel will analyze whether the Complainant has accordingly done so in the Complaint.
A. Identical or Confusingly Similar
The Complainant has successfully established that the disputed domain is confusingly similar to the domain name of the Complainant, since it relies on a common misspelling of the Complainant’s AIRTEL trademark (i.e. the use of the letter “i” instead of “l”) and uses the “.co” domain instead of “.com”. The panel finds that to a layman such a change is negligible and may pass without notice. Reliance was placed on Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775, a similar case where the Panel observed that registering a domain name which contains purposeful misspelling of the Complainant’s domain name creates a virtually identical and/or confusingly similar mark to the Complainant’s trademark under paragraph 4(a)(i) of the Policy. Moreover, in some fonts the letters “i” and “l” seem identical. This further adds to the confusion.
The Panel finds that the Complainant’s trademark AIRTEL is well-known, having a significant presence in the telecommunications industry with tremendous goodwill and reputation transcending Indian borders. The Complainant has satisfied the Panel as regards its rights subsisting in the AIRTEL trademark and AIRTEL formative marks. The Complainant has been active in protecting and enforcing its statutory and common law rights vested in the mark AIRTEL and its formative marks through numerous Courts and Tribunals across various jurisdictions. The Panel finds that the Respondent’s act of registering a domain name incorporating a well-known mark is bound to cause confusion and that the Respondent’s acts are a clear manifestation of typosquatting. See ESPN, Inc. v. XC2, WIPO Case No. D2005-0444, where it was observed that where a Registrant deliberately introduces slight deviations into famous marks for commercial gains, such act amounts to typosquatting. Further it is also opined Dow Jones & Co. v. Powerclick, Inc., WIPO Case No.D2000-1259, that deliberate introductions of errors or changes does not make the disputed domain name any less confusingly similar to the Complainant’s trademark and the same will still be termed as cyber misconduct popularly known as typosquatting.
The Complainant also established that the user interface of the disputed domain name is identical to that of the Complainant’s website, therefore increasing the likelihood of confusion. It is clear to this Panel that a common man would mistakenly assume that the Respondents services originate from the same source as those of the Complainant. The Panel finds that since the disputed domain name has comprehensively used the Complainant’s AIRTEL and AIRTEL MONEY trademarks along with other features of the Complainant’s website it is enough to satisfy the provisions of paragraph 4(a) of the Policy. Previous WIPO Decisions such as RapidShare AG, Christian Schmid v. InvisibleRegistration.com, Domain Admin WIPO Case No. D2010-1059 and Accor v. Everlasting Friendship Trust WIPO Case No. D2005-0288 support the proposition that where the Complainant’s trademarks have been incorporated in its entirety or in deceptively similar variations, it is sufficient to establish that the disputed domain name is identical or confusingly similar to those of the Complainant.
The Panel finds that there is no significance under the Policy of taking into consideration the difference in the generic Top-Level Domain (gTLD) name i.e. the use of “.co” since it does not aid in identifying the source of the services provided by the owner of the domain name. See CBS Broadcasting Inc. v. Worldwide Webs, Inc., WIPO Case No. D2000-0834 and Radwell International, Inc. v. Lucien Seaforth WIPO Case No. D2015-0013. Though it is important to point out that the registration under the said gTLD forms part of the Respondent’s aim to rely on typos of the Complainant’s well-known trademark and domain name <airtel.in>.
B. Rights or Legitimate Interests
The Complainant’s averments consistently point to the fact that there is no commercial relationship between the Complainant and the Respondent. Further, the Respondent has not sought a license from the Complainant or any permission to use the AIRTEL, AIRTEL MONEY or AIRTEL formative trademarks for any commercial purpose. There have been other decisions of this forum supporting the same proposition. See Express Scripts, Inc. v. Windgather Investments Ltd/Mr Cartwright, WIPO Case No. D2007-0267 and Six Continents Hotels, Inc. v. Patrick Ory, WIPO Case No. D2003-0098. The Panel finds no lacuna in the Complainant’s contentions and is of the view that the Respondent has no legal relationship with the Respondent which would qualify its use of the Complainant’s well-known marks as part of the disputed domain name.
The Panel therefore finds that in light of the aforesaid fact the Respondent, through its registration of the disputed domain name, is relying on the goodwill and reputation subsisting in the Complainant’s trademarks to extract money from the unassuming public.
The Panel also agrees with the Complainant’s contentions that Respondent’s act of incorporating the Complainant’s trademarks is only to “masquerade as the Complainant” and depend on the goodwill and reputation of the Complainant’s marks to lure innocent customers to fraudulently reveal financial information and effectively steal money from unassuming subscribers of the Complainant’s services. The Panel therefore finds that since there is no legal association between the parties, the Respondent does not have any bona fide right to use the Complainant’s trademarks as part of the disputed domain name.
The Respondent has not presented any evidence to support that its usage of the Complainant’s trademarks or the disputed domain name indicates any bona fide offering of services. Due to which the Panel finds no defense in favour of the Respondent under paragraph 4(c)(i).
It has been made explicitly clear through the Complainant’s statements that it is the sole proprietor of the AIRTEL, AIRTEL MONEY and AIRTEL formative marks and any association of marks identical or similar thereto is attributed by the public and its subscribers to the Complainant only. Therefore the Respondent has no defense under paragraph 4(c)(ii).
The Panel finds that there has been no attempt by the Respondent to indicate its use of the disputed domain name for any noncommercial or fair use. To the contrary this Panel is of the view that the Respondent is falsely using the Complainant’s marks to mislead visitors of the disputed domain name that the website is operated by the Complainant, and all such services offered through the disputed domain name are controlled by the same. Conclusively, the Respondent has no defense under paragraph 4(c)(iii) of the Policy, for the Respondent’s use of the Complainant’s marks is for a mala fide purpose.
C. Registered and Used in Bad Faith
A comparison of the Respondent’s website with the Complainant’s website substantiates the fact that the Respondent has incorporated the Complainant’s well-known trademarks AIRTEL and AIRTEL MONEY along with other features of its website such as the red and white colour scheme, banners, menu items, phone numbers, as well as including disclaimers of the Complainant’s intellectual property rights. The Respondent has also provided hyperlinks to the Complainant’s website thereby attempting to mislead users into assuming an association between the Complainant and Respondent. The only difference found by the Complainant was on the payment gateway, which is an unauthorized payment platform also citing the AIRTEL MONEY trademark.
The Complainant has brought to light that the Respondent’s registration of the disputed domain name amounts to cyber squatting since the respondent is only using the disputed domain name to attract unassuming subscribers of the Complainant’s services to reveal personal financial information under the garb of providing them the Complainant’s services. The Panel agrees with the Complainant’s claims and finds that the Respondent is relying on the common misspellings (or typos) of the Complainant’s famous trademark and website address to fraudulently draw in the unsuspecting public for monetary gain. The Panel while relying on The One Account Limited v. PALUMBO Steve, WIPO Case No. D2014-1082 is of the view that the present dispute is a transparent case of typo-squatting where the Respondent is using the disputed domain name to facilitate fraudulent phishing activities. The Panel is certain that such an act in itself amounts to a bad-faith registration under paragraph 4(b)(i) and paragraph 4(b)(iv) of the Policy.
The Panel is in agreement with the Complainant’s claims where it has stated that the disputed domain name has been registered only to disrupt and hurt the complainants business by diverting potential customers of the Complainant away from the Complainant’s actual websites, thereby causing substantial loss of sales and serious damage to the goodwill and reputation of the Complainant in its marks. The Panel finds that the Respondent’s use of the disputed domain name is not bona fide and is a bad faith attempt of trading on the Complainant’s well-known trademark and deceives the public for its own fraudulent motives. Therefore, the Respondent’s action is disruptive under paragraph 4(b)(iii) of the Policy.
The Panel finds that the Respondent is aware of the goodwill and reputation in the Complainant’s marks. This is reflective in the calculated manner in which the user interface of the disputed domain name is presented. It is clear that the disputed domain name is designed to look and act like a portal for the Complainant’s subscribers, which is enough to establish that the Respondent is completely aware of the Complainant’s goodwill and reputation in the Complainant’s well-known mark. The Complainant also points to the fact that a number of links on the disputed domain name redirect the visitor of the website to the Complainant’s website “www.airtel.in”. This is clear indication of the Respondent’s awareness of the Complainant, its business and the goodwill and reputation its marks hold in the market.
The Panel acknowledges that the Complainant has been active in protecting its trademark rights, with its earliest registration for the mark AIRTEL in 1995. This supplemented with the fact that the Complainant has consistently been promoting its brand under the said mark for several decades through advertisements, sponsorships, promotional activities, etc. It has also been brought to the notice of the Panel that the Complainant is the owner of several websites incorporating its well-known trademark. It has been duly pointed out by the Complainant that its principal website namely “www.airtel.in” was registered in 2005. The aforesaid, in the opinion of the Panel clearly bears testimony to the fact that that the Respondent’s registration of the disputed domain name in 2014 is a bad faith registration and that the Complainant is the prior user of the AIRTEL trademark and authentic websites incorporating AIRTEL, AIRTEL MONEY and its formative marks.
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 <airtei.co> be transferred to the Complainant.
Date: June 9, 2015