Experian Technology Limited v. Yordanka Hristova
Claim Number: FA1812001819828
Complainant is Experian Technology Limited (“Complainant”), represented by Alex Newson of Experian Legal Team, United Kingdom. Respondent is Yordanka Hristova (“Respondent”), Bulgaria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <experian.ro> (“Domain Name”), registered with Tool Domains Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 7, 2018; the Forum received payment on December 7, 2018.
On December 10, 2018, Tool Domains Ltd confirmed by e-mail to the Forum that the <experian.ro> domain name is registered with Tool Domains Ltd and that Respondent is the current registrant of the name. Tool Domains Ltd has verified that Respondent is bound by the Tool Domains Ltd registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 13, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@experian.ro. Also on December 13, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant has used the EXPERIAN mark in connection with its products and services since as early as 1996. Complainant has rights in the EXPERIAN mark through its trademark registrations with the European Union Intellectual Property Office (“EUIPO”) (e.g., Reg. No. 000543785, registered Oct. 20. 1999). Respondent’s <experian.ro> domain name is identical to Complainant’s EXPERIAN mark as the disputed domain name merely adds a “.ro” country code top-level domain (“ccTLD”) to the mark.
Respondent has no rights or legitimate interests in the <experian.ro> domain name. Respondent is not authorized or licensed to use Complainant’s EXPERIAN mark and is not commonly known by the Domain Name. Additionally, Respondent fails to use the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the Domain Name to commercially benefit by redirecting users to a third-party competing website.
Respondent registered and uses the <experian.ro> domain name in bad faith. Respondent disrupts Complainant’s business and attracts, for commercial gain, users to the Domain Name where it redirects uses to Complainant’s competitors. Further, Respondent had actual and constructive knowledge of Complainant’s rights in the EXPERIAN mark prior to registering and subsequent use of the Domain Name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the EXPERIAN mark. The Domain Name is confusingly similar to Complainant’s EXPERIAN mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used of the Domain Name in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true).
Complainant has rights in the EXPERIAN mark based upon its registration with the EUIPO (e.g., Reg. No. 000543785, registered Oct. 20. 1999). Registration of a mark with the EUIPO is sufficient to establish rights in that mark. See Lilly A/S v. yiyi chen, FA 1704586 (Forum Jan 5, 2017) (“Until March 23, 2016, the EUIPO was known as the Office for Harmonization in the Internal Market. Registration of a mark with the EUIPO (or any other similar governmental authority) is sufficient to establish rights in the mark.”).
The Panel finds that the <experian.ro> Domain Name is identical to the EXPERIAN mark as the name merely adds the “.ro” ccTLD to the fully incorporated mark; see Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the EXPERIAN mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Yordanka Hristova” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
Complainant asserts, and the Panel is satisfied on the evidence before it that this is the case, that the Domain Name has been used to divert users to a website that offers services relating to credit reporting and credit scores, a service that is in direct competition with Complainant. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, October 21, 2018, Respondent had actual knowledge of the Complainant and its EXPERIAN mark. Given the reputation of the EXPERIAN mark that has arisen over 20 years of use and the fact that it is a coined word with no inherent meaning, there is no obvious explanation, nor has one been provided, for an entity to register the Domain Name and redirect it to a site offering services in competition with Complainant other than to take advantage of Complainant’s reputation in the EXPERIAN Mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered and uses the Domain Name in bad faith to create a likelihood of confusion with Complainant’s EXPERIAN mark in order to attract Internet users for commercial gain. The Panel finds that the Respondent has used the Domain Name to redirect users to a third-party website that competes with Complainant’s business. Such use is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <experian.ro> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: January 9, 2019
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