Westmore · UDRP DecisionCapioa.com
The Panel ordered transfer of <capioa.com> after finding it confusingly similar to the Complainant's CAPIO trademark, finding no rights or legitimate interests, and concluding that it was registered and used in bad faith. The decisive evidence concerned use of email addresses at the disputed domain to impersonate Capio board members and approach law firms regarding a fictional legal matter, including communications accompanied by allegedly falsified correspondence and financial documents.
The timeline behind capioa.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind capioa.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates that an inactive website does not prevent a finding against a respondent when the domain is actively used for deceptive email. A single-letter variation of a corporate mark, combined with targeted executive impersonation and allegedly falsified transaction documents, provided strong evidence across all three UDRP elements.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Capio AB v. David Trapp / Perfect Privacy, LLC Case No. D2014-1151 1. The Parties The Complainant is Capio AB of Gothenburg, Sweden, represented by Advokatfirman Vinge KB, Sweden. The Respondent is David Trapp of Watham, Massachusetts, United States of America / Perfect Privacy, LLC of Jacksonville, Florida, United States of America. 2. The Domain Name and Registrar The disputed domain name <capioa.com> is registered with Network Solutions, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2014. On July 3, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 3, 2014, 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 July 4, 2014 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 July 7, 2014. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 11, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 4, 2014. The Center appointed Frank R. Schoneveld as the sole panelist in this matter on August 13, 2014. 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 is a significant European and Swedish healthcare company with more than 11,000 employees in Sweden, Norway, France, Germany and the United Kingdom of Great Britain and Northern Ireland. CAPIO is a registered trade name and registered trademark of the Complainant. CAPIO has been registered as a trademark in Sweden since at least November 8, 2000, and is also registered by the Complainant as a community trademark ( i.e. , within the European Union) both as a figure-mark and as a word-mark, since at least July 6, 2011. The Complainant also owns, amongst other domain names, the domain name <capio.com>. According to the WhoIs database the disputed domain name <capioa.com> was first registered by the Respondent on April 19, 2014. 5. Parties’ Contentions A. Complainant The Complainant asserts that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (Policy, Paragraph 4(a)(i); Rules, Paragraphs 3(b)(viii), (b)(ix)(1)). It is argued that <capioa.com> is confusingly similar to the Complainant’s registered trademark CAPIO and that the addition of a single letter, “a”, is not sufficient to distinguish the domain name from the mark CAPIO. It is also argued that the pronunciation of CAPIO and “capioa” is very similar and that, at first glance, the recipient of an email from the disputed domain name may very well believe that such an email emanates from the Complainant. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, Paragraph 4(a)(ii), Rules, Paragraph 3(b)(ix)(2)). It is asserted that the disputed domain name <capioa.com> does not point to an operating web-site and that the Respondent seems to be anonymous, since the disputed domain name appears to be registered with the Registrar’s privacy service. In any event, the Complainant says that it has not been able to find any evidence of fair use of the disputed domain name. Further, the Complainant says that (a) prior to June 4, 2014 ( i.e. , before the Registrar’s privacy service was engaged), the disputed domain name was registered to a physical person by the name of D. Trapp, and (b) the disputed domain name has only been registered, as far as the Complainant is aware and reasonably can assume, to attempt to commit fraud. The Complainant also says that as far as the Complainant is aware, there is no evidence of the Respondent’s use or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name, in connection with a bona fide offering of goods or services, and neither has the Respondent (as an individual, business, or other organization) been commonly known by the name “capioa”. The Complainant also submits that neither is the Respondent making a legitimate noncommercial or fair use of the disputed domain name. The Complainant contends that the disputed domain name was registered and is being used in bad faith (Policy, paragraphs 4(a)(iii), 4(b), Rules, paragraph 3(b)(ix)(3)). The Complainant submits that during May and June 2014, the Complainant became aware that someone using the disputed domain name has been impersonating board members of the Complainant by way of the email addresses using the disputed domain name, in the form: NameofBoardMember@capioa.com. The Complainant states that the same person(s) as those impersonating Capio board members, have contacted several law firms, claiming to need legal representation on behalf of Capio in a fictional case. The Complainant refers the Panel, for further information, to “http://avoidaclaim.com/20l4/commercial-debt-collection-scam-using-the-names-julian-turner-and-capio-ab/”. The Complainant also states that as of the date of the Complaint, the number of such emails that the Complainant has been made aware of, numbered “around 20 separate e-mails to various law firms in the USA, France and Japan”. The Complainant notes that in one particular case, the person claims to be chairman of the board at the Complainant (using the email address at the disputed domain name) with a copy to the CEO of the Complainant also using an email address at the disputed domain name. In that email, it is falsely stated that the Complainant is in need of legal services regarding a dispute with Praxair. The person had attached to the email certain other falsified email correspondence that also used the disputed domain name, a falsified purchase contract and a falsified payment receipt. The Complainant concludes that the disputed domain name seems to have been acquired only to facilitate attempted fraud, capitalizing on the very similar wording of “capioa” and “capio” and leads to a very high likelihood of confusion with the Complainant’s trademark, and also demonstrating that the disputed domain name was registered and is being used in bad faith by the Respondent. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to the Policy paragraph 4(a), the Complainant must prove that (a) the disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights, (b) the Respondent has no rights or legitimate interests in respect of the disputed domain name, and (c) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant’s registered trademark is the principal part of the disputed domain name. The disputed domain name is made up of a word identical to the Complainant’s trademark with the addition of the letter “a”. At first sight an Internet user could easily overlook the additional “a” and think the disputed domain name was “capio”. In the absence of any other evidence or argument from the Respondent, the Panel accepts that the disputed domain name is so similar to the Complainant’s trademark that it could easily confuse the reader as being that of the Complainant’s trademark, or lead to confusion that the disputed domain name had some association with the Complainant’s trademark when in fact it does not. The Panel therefore concludes that the disputed domain name is confusingly similar to the registered trademark of the Complainant. B. Rights or Legitimate Interests The Policy at paragraph 4(a)(ii) requires that the Complainant show that the Respondent has “no rights or legitimate interest in respect of the disputed domain name”. The website to which the disputed domain name resolves is not presently operating. While no conclusion can be drawn from this fact alone, the Respondent has provided no explanation as to why the disputed domain name is not in use. There is evidence that prior to June 4, 2014 ( i.e. , before the Registrar’s privacy service was engaged), the disputed domain name was registered to a physical person by the name of D. Trapp. As confirmed by the Registrar on July 7, 2014, the current true registrant of the disputed domain name is still D. Trapp. There is no apparent good faith reason the Respondent would register with a physical person’s name and then subsequently seek to hide (apparently) the true registrant of the domain name. This obfuscation, together with the disputed domain name being used to communicate false emails, supposedly from board members of the Complainant, in an attempt to allegedly defraud third parties, suggests the Respondent has no rights or legitimate interest in respect of the disputed domain name. Paragraph 4(c) of the Policy sets out circumstances which, if found by the Panel to be proved, demonstrate the Respondent’s rights or legitimate interests in the disputed domain name (for the purposes of paragraph 4(a)(ii) of the Policy). Paragraph4(c) of the Policy provides: “Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii): (i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial 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." There is no evidence of the Respondent’s use or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name, in connection with a bona fide offering of goods or services, and neither is there any evidence the Respondent (as an individual, business, or other organization) has been commonly known by the name “capioa” or is making a legitimate noncommercial or fair use of the disputed domain name. In view of all of the above, and in the absence of any submission from the Respondent, the evidence submitted by the Complainant leads the Panel to conclude that the Respondent has no rights or legitimate interest in respect of the disputed domain name. C. Registered and Used in Bad Faith In the absence of any response from the Respondent, the Panel accepts that the disputed domain name has been used in emails to impersonate board members of the Complainant and, in particular, has been used in a scheme to attempt to defraud third parties by falsely claiming to need legal representation on behalf of Capio in a fictional case. These emails, in some cases, had attached to them other falsified email correspondence that also used the disputed domain name together with other falsified financial documents. The evidence indicates that the Respondent has taken steps to hide the identity of the true registrant/owner of the disputed domain name and that the disputed domain name is being used to communicate false emails impersonating board members of the Complainant. These emails that use the disputed domain name allegedly attempt to defraud the recipients. In the absence of any other evidence and in the absence of any reaction from the Respondent regarding such serious allegations, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. 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 <capioa.com> be transferred to the Complainant. Frank R. Schoneveld Sole Panelist Date: August 28, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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