Omegaengineering.africa

The timeline behind omegaengineering.africa

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Omega Engineering, Inc. v. Maggie Molewa Claim Number: FA2408002111237 PARTIES Complainant is Omega Engineering, Inc. ("Complainant"), represented by Casey E. Wright of Barnes & Thornburg LLP, Indiana, USA. Respondent is Maggie Molewa ("Respondent"), South Africa. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <omegaengineering.africa>, registered with Tucows Domains Inc.. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. James Bridgeman SC as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to Forum electronically on August 15, 2024; Forum received payment on August 15, 2024. On August 15, 2024, Tucows Domains Inc. confirmed by e-mail to Forum that the <omegaengineering.africa> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On August 15, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 2024, by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@omegaengineering.africa. Also on August 15, 2024, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts. Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. On September 5, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent. RELIEF SOUGHT Complainant requests that the disputed domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant Complainant claims rights in the disputed domain name established by its ownership of the portfolio of registrations described below. Complainant first alleges that the disputed domain is confusingly similar to its OMEGA mark, because it incorporates the mark in its entirety in combination with the generic term "engineering" and the generic top-level domain name <.africa>. It is argued that panels established under the Policy have regularly held that similar changes in a domain name at issue do not reduce the similarity with the trademark relied upon. See Lockheed Martin Corporation v. Stephen Wilson, FA2207002004766 (Forum Aug. 16, 2022)(finding the domain name lockheedmartin-engineering.com confusingly similar to complainant's LOCKHEED MARTIN mark and finding the term "engineering" in lockheedmartin-engineering.com to be descriptive). Complainant next alleges that Respondent has no rights in the disputed domain name, arguing that · upon information and belief, Respondent is not commonly known by the disputed domain name; · Respondent is not, and never has been, a licensee of Complainant; · Complainant has not authorized Respondent to use any version of Complainant's marks for any purpose; · Respondent has never used, or made preparations to use, the disputed domain name in connection with a bona fide offering of goods or services or any legitimate noncommercial or fair purpose; · while the disputed domain name, currently does not resolve to any active content, upon information and belief it has in the past been used by Respondent to pass itself off as Complainant in furtherance of a phishing scam that steals users' sensitive information as shown in a screen capture which is exhibited in an annex to the Complaint; · such use of the disputed domain name does not constitute a legitimate interest, see TVS Motor Company Limited v. Vistaprint Technologies Limited, WIPO Case DCO2014-0007 where the panel found that the respondent's use of the domain name at issue to create an email account from which fraudulent emails were sent was "particularly insidious as the [c]omplainant's officers in question in fact have very similar email addresses"; · a screen capture which is also exhibited in an annex to the Complaint illustrates that when Complainant's legal representative endeavored access the website to which the disputed domain name resolved a warning message was generated on screen stating that access to Respondent's website had been blocked because it may contain content that is unsafe or violates the legal representative's security policies. Complainant adds that Respondent's selection of the disputed domain name was calculated to impersonate Complainant and to defraud customers by creating a likelihood of confusion, and trade on Complainant's goodwill. Furthermore, it is submitted that a side by side comparison of Complainant's website and the website that was historically associated with the disputed domain name which are exhibited in the Complaint shows that Respondent has not made a bona fide offering of goods or services, or a legitimate noncommercial fair use; and panels established under the Policy have consistently held that blatant unauthorized use of a complainant's mark in a domain name at issue is clear evidence that respondent has no rights or legitimate interest in a disputed domain name, see HotelEngine, Inc. v. Doan Nguyen / newtrendshop, FA2404002093241 (Forum May 22, 2024) (finding no legitimate interest as the disputed domain name resolved to a website mimicking complainant's website, and that such registration diverted online traffic). Complainant next alleges that the disputed domain name was registered and is being used in bad faith, arguing that Respondent clearly had prior knowledge of Complainant's rights in the OMEGA mark when the disputed domain name was registered, and there can be no doubt but that Respondent registered the disputed domain name to trade upon Complainant's goodwill. Complainant repeats that the screen captures exhibited within the Complaint, show that Respondent has expressly copied Complainant's website in an attempt by Respondent to pass itself off as Complainant. Further, Respondent's use of the disputed domain name to prominently display Complainant's marks to advertise fraudulent services is per se evidence that Respondent knows of Complainant's services and trademark rights and registered the disputed domain name to tread on Complainant's goodwill. The exhibited screen captures also make clear that Respondent is using the disputed domain name for the purpose of deceiving consumers as to the source, sponsorship, affiliation, or endorsement of the disputed domain name and thereby disrupting Complainant's business, which constitutes bad faith registration and use under Policy 4(b)(iii). Complainant adds that Respondent is not currently using the disputed domain name to display any active content which also constitutes bad faith use. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) ("Respondent's prior knowledge is evident from the notoriety of Complainant's BITFINEX trademark as well as from Respondent's use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant"). In conclusion, Complainant argues that Respondent's lack of any actual use of the disputed domain name also indicates that it was registered, and is being used, in bad faith. See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Forum Feb. 28, 2007) (concluding that the respondent's failure to make active use of the domain name at issue in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith). B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS Complainant is the owner of the trademark OMEGA for use in connection with providing various devices used in pressure management and control solutions, indoor air quality solutions, environmental solutions and other HVAC solutions. Complainant owns a large portfolio of trademark and service mark registrations in the USA and other jurisdictions, for the OMEGA mark and marks incorporating the element OMEGA in combination with other elements. These other elements include a design or logo that incorporates the letter omega in the Greek alphabet (the "OMEGA logo"). Complainant's registrations include: · United States Federal registered trademark OMEGA, registration number 1,397,434 registered on the Principal Register on June 17, 1986, for goods in international class:09; · United States Federal registered trademark OMEGA, registration number 1,992,580 registered on the Principal Register on August 13, 1996, for goods in international class16; · United States Federal registered trademark OMEGA, registration number 2,022,762, registered on the Principal Register on December 17, 1996, for goods in international classes :01,02,07,09,11,14 and16. Complainant has an established Internet presence and maintains its website at <www.omega.com>. The disputed domain name <omegaengineering.africa> was registered on October 10, 2023. It currently does not resolve to any active website but has previously resolved to a website that falsely purported to be maintained by Complainant on which Respondent purported to offer instrumentation devices, some of which were branded with the OMEGA marks. There is no information about Respondent, except for that provided in the Complaint, the Registrar's WhoIs and the information provided by the Registrar in response to the request by Forum for details of the disputed domain name for the purposes of this Complaint. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint"). Identical and/or Confusingly Similar Complainant has provided uncontested convincing evidence of its rights in the OMEGA trademark and service mark established by its the ownership of the abovementioned registration in the United States and elsewhere, and uses the mark The disputed domain name <omegaengineering.africa> is composed of Complainant's mark in its entirety in combination with the word "engineering" and the generic Top Level Domain (" gTLD") extension <.africa>. The generic and descriptive word "engineering" within the disputed domain name does not prevent a finding of confusing similarity with Complainant's OMEGA mark. The gTLD extension <.africa> within the disputed domain name may be ignored for the purposes of comparing the mark and the disputed domain name, because it would be considered by Internet users to be a necessary technical element for a domain name. This Panel finds therefore that the disputed domain name is identical to the OMEGA mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names as set out in Complainant's detailed submissions above. It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests. Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii). Registration and Use in Bad Faith Complainant's rights in the OMEGA mark, long predate the registration of the disputed domain name on October 10, 2023. The disputed domain name is a combination of Complainant's name and the word "engineering" which is a reference to the type of products and services which Complainant provides and supplies. The disputed domain name does not resolve to any active website, but the exhibited screen capture shows that it has resolved to a website on which Respondent is impersonating Complainant, while purporting to use Complainant's OMEGA mark and Complainant's OMEGA logo. Taken together the adoption of the OMEGA mark and the element "engineering" in the disputed domain name infer a reference to Complainant and the pressure monitoring devices which it manufactures and sells. Furthermore, the historic use of the disputed domain name as the address of a website on which Respondent purported to impersonate Complainant, used Complainant's marks and OMEGA logo, and offered Complainant's OMEGA branded goods for sale prove on the balance of probabilities that the disputed domain name was registered with knowledge of Complainant, its mark, brand and products. On the balance of probabilities, therefore, this Panel finds that the disputed domain name was in fact chosen and registered with Complainant's mark in mind in order to take predatory advantage of the goodwill and reputation that Complainant has established in the mark. There is no evidence of Respondent using the mark to engage in phishing but the fact that the disputed domain name has been used in the recent past to impersonate Complainant, and to pass off Respondent's goods as those of Complainant allow this Panel to find on the balance of probabilities that the passive holding of the disputed domain name constitutes use in bad faith for the purposes of the Policy. This Panel finds therefore that the disputed domain name was registered and is being used in bad faith and Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii). DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <omegaengineering.africa> domain name be TRANSFERRED from Respondent to Complainant. ____________________________________ James Bridgeman SC Panelist Dated: September 8, 2024 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.