Westmore · UDRP DecisionAccelachern.com
The Panel denied the Complaint because Vifor (International) Ltd failed to establish rights in the ACCELA trademark relied upon. Although the domain name was found confusingly similar to ACCELA and was being used for fraudulent emails impersonating representatives of trademark owner Accela ChemBio Inc., that company was not a party and did not submit the requested signed consent to join the proceeding. The Panel therefore found the first UDRP element unsatisfied and did not determine the second or third elements.
The timeline behind accelachern.com
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The case illustrates that strong evidence of impersonation and payment fraud does not remove the requirement that the named complainant establish rights in the trademark relied upon. The Panel accepted confusing similarity and regarded the evidence as strongly adverse to the Respondent, but the absence of the trademark owner or another demonstrated basis for the Complainant's rights was dispositive.
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 Vifor (International) Ltd v. Oluwa Soft Case No. D2021-0128 1. The Parties The Complainant is Vifor (International) Ltd, Switzerland, represented internally. The Respondent is Oluwa Soft, Nigeria. 2. The Domain Name and Registrar The disputed domain name <accelachern.com> (the “Disputed Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 15, 2021. On January 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 19, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 the Respondent of the Complaint, and the proceedings commenced on February 15, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 16, 2021. The Center appointed Nick J. Gardner as the sole panelist in this matter on April 7, 2021. 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. On April 23, 2021, the Panel issued a first Procedural Order (the “First Procedural Order”). On April 28, 2021, the Complainant replied to the First Procedural Order. The Respondent has not commented on the Complainant’s submission. On May 6, 2021 a second Procedural Order (the “Second Procedural Order”). No further filing was made by either the Complainant or the Respondent. These orders are discussed below. 4. Factual Background The Complainant is a chemical company incorporated in Switzerland. The Complainant relies upon a United States of America (“US”) trademark No. 6172262 filed on August 14, 2018 and registered on October 13, 2020. The trademark is for a design comprising a stylised letter S alongside the word “Accela”. The trademark is owned by a US company called Accela ChemBio Inc. which is not a party to this proceeding (see discussion below). The Disputed Domain Name was registered on October 12, 2020. The Complainant has placed in evidence email correspondence using the Disputed Domain Name – i.e. , in the format “[name]@accelachern.com”. The Respondent has used the “@accelachern.com” domain in order to impersonate representatives of “Accela ChemBio Inc”. Such emails were used as part of an attempt to defraud the Complainant into paying monies due to Accela ChemBio Inc. to a different bank account. The emails are manifestly fraudulent. 5. Parties’ Contentions A. Complainant The Complainant’s case is as follows. The Disputed Domain Name is confusingly similar to the term “accela” and it relies upon the registered trademark owned by its supplier in this regard (see above). The Complainant says the text string “accelachern” is easily misread as “accelachem” which recipients of emails will take to be an abbreviation for “accela chemical”. The Respondent has no rights or legitimate interests in the term “accela” or “accelachern”. The Disputed Domain Name was registered and is being used in bad faith. It is being used to attempt to perpetrate fraud. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Preliminary Matters The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g ., Verner Panton Design v. Fontana di Luce Corp , WIPO Case No. D2012-1909 ). Substantive Matters To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel concludes the Disputed Domain Name is confusingly similar to the ACCELA trademark. That trademark is a device mark but features prominently as part of the registered device the word “accela”. In this regard see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.10 as follows: “How are trademark registrations with design elements or disclaimed text treated in assessing identity or confusing similarity? Panel assessment of identity or confusing similarity involves comparing the (alpha-numeric) domain name and the textual components of the relevant mark. To the extent that design (or figurative/stylized) elements would be incapable of representation in domain names, these elements are largely disregarded for purposes of assessing identity or confusing similarity under the first element. Such design elements may be taken into account in limited circumstances e.g. , when the domain name comprises a spelled-out form of the relevant design element. On this basis, trademark registrations with design elements would prima facie satisfy the requirement that the complainant show ‘rights in a mark’ for further assessment as to confusing similarity”. See also for example EFG Bank European Financial Group SA v Jacob Foundation WIPO Case No. D2000-0036 and Sweeps Vacuum & Repair Centre, Inc. v. Nett Corp WIPO Case No. D2001-0031 . In the present case the Respondent has simply combined the word “accela” with the letters “chern” which are easily misread as “chem” and which is clearly intended to give the impression of the trademark combined with an abbreviation for the word “chemical”. That in the Panel’s opinion produces a result which is confusingly similar to the trademark, and indeed it is clear that was the Respondent’s intention. It is also well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady , WIPO Case No. D2000-0429 . Accordingly the Panel is satisfied that the Disputed Domain Name is confusingly similar to the trademark the Complainant relies upon. The difficulty the Complainant has however is that it is not the owner of this trademark. It is owned by a third party Accela ChemBio Inc. which the Complainant describes as being a “service provider”. Given this difficulty the Panel issued the First Procedural Order which was in the following terms: “In accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel amongst other things that the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights. In this regard the Complainant relies upon a United States of America (‘US’) trademark, No. 6172262 filed on August 14, 2018 and registered on October 13, 2020, for a stylised letter ‘s’ accompanied by the word ‘accela’. The filed evidence shows that trademark is owned by a US corporation named Accela ChemBio Inc. The Complaint describes this company as a ‘Service Provider’ to the Complainant. Publicly available information appears to indicate it is independently owned and not a subsidiary or group company of the Complainant. The Panel does not presently understand how this background gives the Complainant (as opposed to Accela ChemBio Inc.) any rights in the trademark in question. The Panel directs the Complainant to provide a further filing on or before April 30, 2021 explaining in more detail the basis on which it says it has rights in the trademark relied upon. The Respondent shall, if he wishes, be entitled to file a statement in response to the Complainant’s filing, such statement to be provided on or before May 6, 2021. The Decision due date is extended until May 10, 2021.” The Complaint responded on April 28, 2021 with the following statement: “‘Accela ChemBio Inc.’ owns the United States of America (‘US’) trademark, No. 6172262 covering ‘ACCELA’. Section 12A (page 7) of the present complaint states that ‘Accela ChemBio Inc.’ is the trademark owner. The Complainant ‘Vifor (International) Ltd.’ does not own the trademark. Moreover, ‘Accela ChemBio Inc.’ is not a subsidiary or group company of the Complainant. However, the Respondent is intentionally abusing the domain ‘accelachern.com’ and impersonating multiple representatives of ‘Accela ChemBio Inc.’ (Complainant’s Partner) in order to send fraudulent payment instructions to the Complainant (see Section 12C, page 8 of the present complaint). If possible, it is requested that ‘Accela ChemBio Inc.’ is made party to the proceedings and the disputed domain is transferred to ‘Accela ChemBio Inc.’ as the owner.” The Panel is sympathetic to the Complainant’s position and has no desire to present unnecessary procedural difficulties in a case where the Respondent is clearly engaged in fraud. However it is quite clear from the material before the Panel and the Complainant’s response to the First Procedural Order that the procedural situation presents a difficulty. The Panel considers that had a complaint been brought by Accela ChemBio Inc. that complaint would likely have succeeded. The Complainant’s suggestion that Accela ChemBio Inc. be added as a complainant to overcome this difficulty is not one that the Panel considers appropriate without that company at least having agreed to this course of action. The Panel therefore issued the Second Procedural Order in the following terms: “In the light of the Complainant’s communication of April 28, 2021 in response to the Panel’s Administrative Procedural Order No 1, the Panel requests that the Complainant files a signed request made by Accela ChemBio Inc. indicating that it wishes to be added to the present proceedings as a co-Complainant and that it wishes the domain name at issue to be transferred to it. The Panel directs the Complainant to provide a further filing on or before May 11, 2021. The Respondent shall, if he wishes, be entitled to file a statement in response to the Complainant’s filing, such statement to be provided on or before May 15, 2021. The Decision due date is extended until May 24, 2021.” No further filing was made by either the Complainant or the Respondent. Had an appropriate request been made by Accela ChemBio Inc. the Panel would have added that company as a co-Complainant and the Complaint would likely have succeeded. However without a request from Accela ChemBio Inc., the Panel has no way of knowing whether it wishes to be a co-complainant or whether it wishes the Disputed Domain Name to be transferred to it. In all the circumstances, the Panel concludes it cannot on its own add Accela ChemBio Inc. as a co-complainant. The Panel therefore concludes that the Complainant has failed to show it has rights in a trademark. There is nothing however to prevent Accela ChemBio Inc. bringing a further complaint based on the present facts should it wish to do so. Accordingly the Panel finds that the Complainant has failed to show that the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests In view of the Panel’s findings in relation to the first element, it is not necessary to determine this element. The Panel would however observe that it considers it unlikely that the Respondent has any rights or legitimate interests in the Disputed Domain Name. C. Registered and Used in Bad Faith In view of the Panel’s findings in relation to the first element, it is not necessary to determine this element. The Panel would however observe that the fact that the Disputed Domain Name is being used in connection with fraudulent emails would likely lead to a finding that the registration and use were in bad faith. 7. Decision For the foregoing reasons, the Complaint is denied. This finding shall not preclude Accela ChemBio Inc. from bringing a further complaint relying upon the same facts should it so wish. Nick J. Gardner Sole Panelist Date: May 21, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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