Westmore · UDRP DecisionIngonico.com
The Panel ordered transfer of <ingonico.com>. It found the Domain Name confusingly similar to the Complainant’s INGENICO mark because it was most sensibly read as a misspelling of that mark. The Panel further found that the Domain Name was registered and used to further an attempted fraudulent impersonation scheme directed at an employee of the Complainant, establishing both the absence of rights or legitimate interests and bad-faith registration and use.
The timeline behind ingonico.com
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The decision illustrates that even a preliminary impersonation email may support findings on legitimate interests and bad faith when its only reasonable interpretation is that it initiates a fraudulent scheme. It also carefully separates the named reseller registrant from the unidentified person or company apparently controlling the Domain Name.
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 Ingenico Group v. Cimpress Schweiz GmbH Case No. D2018-2771 1. The Parties 1.1 The Complainant is Ingenico Group of Paris, France, represented by Markplus International, France. 1.2 The Respondent is Cimpress Schweiz GmbH of Zurich, Switzerland. 2. The Domain Name and Registrar 2.1 The disputed domain name <ingonico.com> (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History 3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2018. On December 4, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 5, 2018, 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 December 10, 2018, 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 amended Complaint on December 11, 2018. 3.2 The Center verified that the Complaint together with the amended 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”). 3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 1, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 2, 2019. 3.4 The Center appointed Matthew Harris as the sole panelist in this matter on January 17, 2019. 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 4.1 The Complainant (whose full name appears to be Ingenico Group S.A) is a French company that specialises in the provision of payment services. It has conducted this business for 35 years and has operations in 170 countries. Its services are promoted on a website operating from the domain name <ingenico.com>. 4.2 The Complainant is the owner of a number of registrations that comprise or incorporate the term “Ingenico”. They include international trade mark registration no. 1004927, registered on October 9, 2008 in classes 9, 16, 35, 36, 37, 38 and 42 for the word mark INGENICO that has proceeded to registration in at least 8 territories (including the European Union and the United States of America). 4.3 The Domain Name was registered November 12, 2018. It is currently registered in the name of a Swiss domain name reseller and accordingly it would appear that this reseller has registered and/or ceded control of the Domain Name to an unknown person or company. 4.4 The Domain Name has been used since registration to send at least one email that falsely purports to have come from the financial director of the Complainant to an employee of the Complainant. 4.5 In late November 2018 the Registrar suspended the Domain Name at the request of the Complainant. 5. Parties’ Contentions A. Complainant 5.1 The Complainant describes its business and marks (as has already been set out in in the Factual Background section of this decision). It claims that the Domain Name incorporates a deliberate misspelling of its name and INGENICO mark and that the Domain Name is thereby confusingly similar to that mark. 5.2 The Complainant contends that save for email use, the Domain Name has not been used for any website. The email use is claimed to be fraudulent and it is also contended that the Domain Name was registered with such fraudulent use in mind. As this use has not been authorised by the Complainant, the Complainant contends that the Respondent has no rights or legitimate interests in the Domain Name and that the Domain Name has been both registered and used in bad faith. Among the various cases cited by the Complainant in support of this proposition are two cases where Domain Names registered in the name of Cimpress Schweiz GmbH were also used to send fraudulent emails of this sort. B. Respondent 5.3 The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent the Panel from determining the dispute based upon the Complaint, notwithstanding the failure of any respondent to lodge a Response. 6.2 To succeed in these proceedings the Complainant must make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and (iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)). 6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall "draw such inferences therefrom as it considers appropriate". A. Identical or Confusingly Similar 6.4 The Panel accepts that the Complainant has registered trade mark rights in the word mark INGENICO. It also accepts that the most sensible reading of the Domain Name is as a misspelling of that mark in combination with the generic Top-Level Domain (“gTLD”), “.com". It follows that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. The Complainant has, therefore, made out the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests and Registered and Used in Bad Faith 6.5 It is usual for panels under the Policy to consider the issues of rights or legitimate interests and registration and use in bad faith in turn. However, in a case such as this it is more convenient to consider those issues together. 6.6 The Panel accepts that the Domain Name has been registered and used with the intention of furthering a fraudulent scheme whereby the underlying controller of the Domain Name registrant has sought to impersonate an individual in the senior management of the Complainant and that this has been done in order to try and deceive an employee or employees of the Complainant. 6.7 The only email that the Panel has been provided with is one in which the sender asks whether the recipient is available at her desk. Whether there are others is not entirely clear. It may be that only one is provided because the email was identified as fraudulent at an early stage. However, regardless of whether there were other emails of this sort, the Panel accepts that this was an example of actual or attempted “CEO fraud”, of the sort described in The Swatch Group AG and Swatch AG v. Christopher Biedermann / Marcin Rulnicki , WIPO Case No. D2017-0388 . The only reasonable interpretation of the email is that some sort of fraudulent scheme was intended. The Panel also accepts that it is most likely that the Domain Name was registered with the intention of sending that email and furthering that scheme. 6.8 There is no right or legitimate interest in holding a domain name for the purpose of furtherance of a fraud through impersonation. Further, the registration and use of a domain name for such a purpose involves registration and use in bad faith (see, for example, Vestey Group Limited v. George Collins , WIPO Case No. D2008-1308 ). Indeed, it is difficult to conceive of a more clear-cut example of bad faith registration and use of a domain name, even if such activity does not obviously fall within the scope of any of the non-exhaustive list examples of circumstances indicating bad faith registration or use set out in paragraph 4(b) of the Policy. 6.9 In the circumstances, the Panel has no hesitation in finding that the Complainant has made out the requirements of paragraphs 4(a)(ii) and 4(a)(iii) of the Policy. 6.10 The Panel would also observe that it is somewhat troubling that a not insignificant number of domain names registered by Cimpress Schweiz GmbH, would appear to have been used in this fashion. Two such cases are named in the Complaint but there are more. A cursory search of WIPO case decisions database identifies the following in the last couple of years: - L'Oréal v. Cimpress Schweiz GmbH , WIPO Case No. DCO2017-0021 . - Select Equity Group, L.P. v. Cimpress Schweiz GmbH , WIPO Case No. D2017-1140 . - BJ2 LLC v. Cimpress Schweiz GmbH, WIPO Case No. D2017-2066 . - Admiral Group Plc and EUI Limited v. Cimpress Schweiz, Cimpress Schweiz GmbH , WIPO Case No. DCO2017-0043 . - Valvoline Licensing and Intellectual Property LLC v. Cimpress Schweiz GmbH, Cimpress Schweiz GmbH , WIPO Case No. D2018-1488 . - Moncler S.p.A. v. Cimpress Schweiz GmbH , WIPO Case No. D2018-0992 . 6.11 Further, the Panel also understands that at least historically Cimpress Schwiez and/or an associated company has traded under the name Vistaprint. There are online articles that date back to at least 2015 that purport to record and criticise Vistaprint’s business practices that are said to facilitate such fraudulent use (see for example “https://cofense.com/vistaprint-abuse-free-phish-for-all/”). 6.12 However, since this point is not addressed in any detail in the Complaint, the Panel has not sought further submissions from Cimpress Schweiz GmbH on this issue, and it not necessary to reach any formal finding in this respect to decide the case in the Complainant’s favour, the Panel refrains from any further comment in this respect. 7. Decision 7.1 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 <ingonico.com> be transferred to the Complainant. Matthew Harris Sole Panelist Date: January 23, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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