Brink's Network, Incorporated v. EBMC EMIRATE CONSULTANT
Claim Number: FA2004001890897
Complainant is Brink's Network, Incorporated (“Complainant”), represented by Lyndsey Waddington of Cowan, Liebowitz & Latman, P.C., United States. Respondent is EBMC EMIRATE CONSULTANT (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brinksl.com>(‘the Domain Name’), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 3, 2020; the Forum received payment on April 3, 2020.
On April 4, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <brinksl.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 April 6, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2020 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@brinksl.com. Also on April 6, 2020, 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 May 1, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark BRINKS registered, inter alia, in the USA for cash transportation services with first use since at least 1950. Its affiliate Brinks Incorporated owns <Brinks.com>.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s BRINKS mark, wholly incorporating it and adding only the letter ‘L’ and the gTLD .com which does not distinguish the Domain Name from the Complainant’s mark.
Respondent is not commonly known by the BRINKS mark and has no permission from the Complainant to use the Complainant’s mark or its logo. The Domain Name has been used for a site mimicking the Complainant’s web site using the Complainant’s logo for phishing. This cannot be a bona fide offering of goods and services or a noncommercial legitimate fair use. The Respondent has no rights or legitimate interests in the Domain Name.
The Respondent registered the Domain Name to direct it to a site that uses the Complainant’s logo to confuse Internet users into believing the web site and Domain Name are associated with the Complainant. The mimicking of the Complainant shows the Respondent is aware of the Complainant and its business. The Domain Name has been registered and used in bad faith to confuse Internet users and take advantage of the Complainant’s mark. The Respondent did not reply to a cease and desist letter from the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark BRINKS registered, inter alia, in the USA for cash security services with first use recorded as 1950.
The Domain Name registered in 2020 has been used for a site mimicking a site of the Complainant and using its logo.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant's BRINKS mark (which is registered in USA for cash transportation services with first use recorded since at least 1950), the letter ‘L’ and the gTLD .com which do not distinguish the Domain Name from the Complainant’s mark.
The Panel agrees that misspellings by one letter does not prevent confusing similarity between the Domain Name and the Complainant's BRINKS trade mark pursuant to the Policy. See Twitch Interactive Inc. v Antonio Teggi, FA 1626528 (Forum Aug 3, 2015) (where an additional ‘c’ was added). As such the addition of an extra ‘L’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark under the Policy.
The gTLD .com does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s BRINKS registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its marks. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site attached to the Domain Name has mimicked a site of the Complainant’s using the Complainant’s logo as a masthead so that the Respondent’s site appears to be an official site of the Complainant. The Panel finds this use is deceptive and passing off. As such it cannot amount to the bona fide offering of goods and services and it is not a legitimate noncommercial fair use. See iFinex Inc. v Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018)(holding that the respondent’s mimicking the complainant’s web site in order to cause existing or potential customers of the complainant to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name). Further phishing itself cannot be a bona fide offering of goods and services or a legitimate noncommercial fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (“a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s logo as a masthead. The fact the Complainant’s logo has been used shows that the Respondent is aware of the Complainant and its business, rights and services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site and services on it under Policy ¶ 4(b)(iv) likely to disrupt the business of the Complainant under Policy ¶ 4(b)(iii). See Allianz of AM. Corp v Bond, FA 680624 (Forum June 2, 2006)(finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
Further phishing can be evidence of bad faith registration and use within the Policy ¶ 4(a)(iii) See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
Additionally, The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4(b)(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 <brinksl.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 1, 2020
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