Westmore · UDRP DecisionMyoccsamaritanspurse.org
The Panel ordered transfer of <myoccsamaritanspurse.org>. It found the domain confusingly similar to Complainant's registered SAMARITAN'S PURSE mark because the mark remained recognizable despite the added letters “myocc” and the “.org” gTLD. Respondent lacked rights or legitimate interests because the domain was used for a PPC parking page containing links to third-party websites, including links competing with Complainant's charity services. Bad faith was established from the prior widespread use and registration of the mark, the composition of the domain, and its use to attract and divert Internet users through PPC links.
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The decision illustrates how a domain that incorporates a charity's complete trademark and is used for PPC links, including links to competing charity services, can satisfy all three UDRP elements. The donor-diversion context gave the PPC use particular relevance because the Panel found that it distracted potential donors from Complainant.
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 Samaritan’s Purse v. Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico Case No. D2019-2410 1. The Parties Complainant is Samaritan’s Purse, United States of America (“United States”), represented internally. Respondent is Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 2. The Domain Name and Registrar The disputed domain name <myoccsamaritanspurse.org> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 4, 2019. On October 4, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 7, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on October 7, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 9, 2019. 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 30, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 31, 2019. The Center appointed Marina Perraki as the sole panelist in this matter on November 5, 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 Complainant is active inter alia in the field of charitable fund raising, charitable services, and educational services. It owns the registered trademark SAMARITAN’S PURSE in several countries for inter alia the aforementioned services. Complainant is the owner of the following inter alia trademark registrations: - European Union Trade Mark registration No. 002624906, SAMARITAN’S PURSE (word), filed on March 20, 2002 and registered on January 26, 2007 for services inter alia in international classes 36, 41, 44 and 45; - United States Trade Mark registration No. 1,594,541, SAMARITAN’S PURSE (word), filed on August 21, 1989 and registered on May 1, 1990 for services in international class 36; and - International Trade Mark registration No. 8682588, SAMARITAN’S PURSE (word), registered on March 14, 2005, for services in International classes 36, 41, 43, 44 and 45, designating China, Japan, Norway, Republic of Korea and Singapore. The Domain Name was registered on April 3, 2019 and resolves to a website that appears to be a pay-per-click (“PPC”) advertisement site, leading the Internet user to click on search links for goods and services similar to goods and services originating from Complainant. 5. Parties’ Contentions A. Complainant Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Complainant has demonstrated rights through registration and use of the SAMARITAN’S PURSE mark. The Panel finds that the Domain Name is confusingly similar to Complainant’s trademark SAMARITAN’S PURSE. The Domain Name incorporates Complainant’s trademark in its entirety. This is sufficient to establish confusing similarity ( Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr. , WIPO Case No. D2000-1525 ). The additional letters “myocc” do not avoid a finding of confusing similarity, as the Complainant’s trademark is recognizable within the Domain Name (see Accenture Global Services Limited v. Jean Jacque / Luck Loic , WIPO Case No. D2016-1315 ; Wragge Lawrence Graham & Co LLP v. Registration Private, Domains by Proxy LLC / Ian Piggin , WIPO Case No. D2015-0135 and WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 1.8 ). The generic Top-Level Domain (“gTLD”) “.org” is also disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons (see Rexel Developpements SAS v. Zhan Yequn , WIPO Case No. D2017-0275 ; Hay & Robertson InternationalLicensing AG v. C. J. Lovik , WIPO Case No. D2002-0122 ). The Panel finds that the Domain Name is confusingly similar to the SAMARITAN’S PURSE mark of Complainant. Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements: (i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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. The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complaint, Respondent was not authorized to register the Domain Name. Respondent did not demonstrate, prior to the notice of the dispute, any use of the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. On the contrary, as Complainant has demonstrated, the Domain Name is used to host a PPC parking page, with links to various third-party websites, some of which directly compete with Complainants’ business, namely charity services. The use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with a complainant’s trademark ( Archer-Daniels-Midland Company v. Wang De Bing , WIPO Case No. D2017-036 3; Virgin Enterprises Limited v. LINYANXIAO aka lin yanxiao , WIPO Case No. D2016-2302 ; Donald J. Trump v. Mediaking LLC d/b/a Mediaking Corporation and Aaftek Domain Corp. , WIPO Case No. D2010-1404 ; WIPO Overview 3.0 , section 2.9 ). The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name. Complainant has established Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith The Panel concludes that Respondent has registered and used the Domain Name in bad faith. Because the SAMARITAN’S PURSE mark had been widely used and registered at the time of the Domain Name registration by Respondent, the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering the Domain Name ( Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc. , WIPO Case No. D2014-1754 ; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net , WIPO Case No. D2000-0226 ). Respondent could have searched the United States or European Union trademark registries and should have found Complainant’s prior registrations in respect of SAMARITAN’S PURSE ( Citrix Online LLC v. Ramalinga Reddy Sanikommu Venkata , WIPO Case No. D2012-1338 ). Furthermore, the Domain Name incorporates in whole Complainant’s mark plus additional non-distinctive letters, and the gTLD “.org”, which points to the nature of business of Complainant and creates a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Domain Name. This also supports the finding that Respondent knew of Complainant and Complainant’s business and trademarks. Complainant has demonstrated that the Domain Name was employed to host a PPC parking page directing Internet users to third parties’ websites. It has been recognized that such use of another’s trademark can constitute registration and use in bad faith ( McDonald’s Corporation v. ZusCom , WIPO Case No. D2007-1353 ; Volkswagen Aktiengesellschaft v. Robert Brodi , WIPO Case No. D2015-0299 ; SAP SE v. Domains by Proxy, LLC / Kamal Karmakar , WIPO Case No. D2016-2497 ; WIPO Overview 3.0 , section 3.5 ). Furthermore, as Complainant has demonstrated, the Domain Name incorporates Complainant’s registered trademark in its entirety, therefore the website under the Domain Name confuses and distracts potential donors from learning about and donating to Complainant. Under these circumstances and on this record, the Panel finds that Respondent registered and used the Domain Name in bad faith. Complainant has established Policy, paragraph 4(a)(iii). 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 Domain Name <myoccsamaritanspurse.org> be transferred to the Complainant. Marina Perraki Sole Panelist Date: November 19, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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