Westmore · UDRP DecisionEneleled.top
The Panel found the disputed domain name confusingly similar to the Complainant’s ENEL mark and found that the Respondent lacked rights or legitimate interests. The Complaint nevertheless failed because the Panel was not persuaded, on the balance of probabilities, that the Respondent registered and used the passively held domain name in bad faith. In particular, the meaningless addition “eled” detracted from the distinctiveness of ENEL, and the evidence did not establish that the Respondent intended to target the Complainant.
The timeline behind eneleled.top
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This decision illustrates the separation between the UDRP’s standing test for confusing similarity and the more demanding proof of targeting required for bad faith. Incorporation of an entire mark, a well-known complainant, passive holding, and respondent default were sufficient for the first two elements but did not establish that the registrant probably selected the overall string to exploit the mark.
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 Enel S.p.A. v. See PrivacyGuardian.org / Anton Bylah Case No. D2021-2207 1. The Parties The Complainant is Enel S.p.A., Italy, represented by Società Italiana Brevetti, Italy. The Respondent is See PrivacyGuardian.org, United States of America / Anton Bylah, Ukraine. 2. The Domain Name and Registrar The disputed domain name <eneleled.top> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 9, 2021. On July 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 9, 2021, 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 the Complainant on July 15, 2021 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 15, 2021. 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 the Respondent of the Complaint, and the proceedings commenced on July 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 12, 2021. The Center appointed Ian Lowe as the sole panelist in this matter on August 23, 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. 4. Factual Background The Complainant is the largest Italian energy company, distributing electricity and gas to more than 26 million Italian customers. It is the parent company of the Enel Group which operates through its subsidiaries in more than 32 countries across four continents, employing nearly 70,000 people and bringing energy to around 64 million customers. The Complainant is the proprietor of numerous registered trademarks comprising “enel” in several jurisdictions, including Italy trademark number 1299011 figurative word mark ENEL registered on January 25, 2008 and International Trademark number 1322301 figurative word mark ENEL registered on February 4, 2016. It has registered a number of domain names comprising “enel”, all of which resolve to its principal website at “www.enel.com”. The Domain Name was registered on January 10, 2021. It does not resolve to an active website and does not appear to have done so since it was registered. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its ENEL trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings For this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the Domain Name is identical 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has uncontested rights in its ENEL trademarks, both by virtue of its trademark registrations and as a result of the goodwill and reputation acquired through its widespread use of the mark. Ignoring the generic Top-Level Domain (“gTLD”) “.top”, the Domain Name comprises the entirety of the Complainant’s ENEL trademark together with the letters “eled”. The additional letters have no apparent meaning or significance and their addition to the Complainant’s mark also creates a meaningless combination that is somewhat dissimilar to the mark. Nevertheless, as the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“ WIPO Overview 3.0 ”) comments at paragraph 1.7, “in cases where a domain name incorporates the entirety of a trademark, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.” The Panel considers the issue finely poised, but in the circumstances finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant relies on the fact that there is no evidence of any use of, or preparations to use, the Domain Name by the Respondent in connection with a bona fide offering of goods or services and allege that any use of the Domain Name, incorporating as it does the entirety of the Complainant’s ENEL mark, could not amount to legitimate use. The Respondent has chosen not to respond to the Complaint to explain its use of the Domain Name. On balance, the Complainant has raised a prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name, and the Respondent has taken no steps to counter that prima facie case. Accordingly, the Panel finds that on the balance of probabilities the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith The Complainant relies on the notoriety of its ENEL mark as evidence that the Respondent had knowledge of the Complainant’s rights in the mark when it registered the Domain Name. The Panel accepts that the Complainant is internationally well-known. However, the Respondent has made no use of the Domain Name, save for its passive holding, and no use therefore that could support a finding that it must have had the Complainant and its rights in the mark in mind at that time. Although the Domain Name comprises the entirety of the Complainant’s ENEL mark, the addition of the letters “eled” creates a meaningless combination that detracts from the distinctiveness of the Complainant’s mark, particularly since the letters “eled” do not have any apparent independent meaning to separate them conceptually from the Complainant’s mark. In those circumstances, the Panel considers that it is by no means clear that the Respondent’s focus at the time of registration was on the mark ENEL or that it registered the Domain Name with a view to taking advantage of the reputation and distinctiveness of the mark to attract Internet users to websites associated with the Domain Name for commercial gain. The Panel finds it difficult to conceive how the combination making up the Domain Name could have been thought by the Respondent to attract Internet users interested in the Complainant, or seeking out “ENEL” and does not accept that it is more likely than not that the Respondent registered the Domain Name with that intention. Accordingly, the Panel declines to find that the Domain Name was registered and is being used in bad faith. 7. Decision For the foregoing reasons, the Complaint is denied. Ian Lowe Sole Panelist Date: September 6, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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