I. As the respondent did not file an administratively compliant Response, pursuant to paragraph 14(b) of the Rules, the Panel may draw such inferences therefrom as it considers appropriate.
II. The Panel finds that the disputed domain name <upworkmarket.com> is confusingly similar to a trademark in which the Complainant has rights as the disputed domain name wholly incorporates the Complainant’s distinctive trademark together with the descriptive and generic term “market” which directly relates to the Complainant’s activity and therefore enhances the likelihood of confusion (See e.g. Cephalon Inc v. WhoisGuardService, AF 101174, Nat. Arb, Forum, April 1st, 2016). The Panel agrees with the well-established view under UDRP that generic Top-Level Domain (gTLD) extensions may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name (See e.g. Boehringer Ingelheim International GmbH v. Ralf Zinc, WIPO case No. D2016-1236, August 1st, 2016) and considers the gTLD extension “.com” to be irrelevant in the present case.
III. The Panel is of the view that the Complainant has presented a clear prima facie showing of the Respondent’s lack of rights or legitimate interest in the disputed domain name. As a result of the Respondent’s default, the Respondent has failed to rebut that showing. Moreover, the Respondent cannot be considered to be making a bona fide offering of goods and services as within the meaning of paragraph 4(c)(i) of the Policy given that the disputed domain points to a website offering directly competitive services. Such use cannot be said to be a legitimate noncommercial or fair use of the disputed domain name within the meaning of paragraph 4(c)(iii) of the Policy. Furthermore, the Respondent did not provide the Panel with any evidence of being commonly known by the disputed domain name as referred to in paragraph 4(c)(ii) of the Policy (See e.g. CMC Markets UK Plc v. Domains BY Proxy LLC and Mohammad Shekh Sliman, AF 101282, Nat. Arb. Forum, October 7th, 2016).
IV. The Panel finds that the Respondent registered and used the disputed domain name in bad faith as the Respondent, by offering directly competitive services to those of the Complainant through the disputed domain name, has intentionally attempted to attract Internet users to the disputed domain name for commercial gain by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website and of services on the Respondent’s website (See e.g. Boehringer Ingelheim Pharma GmbH v. Ayma, AF 101231, Nat. Arb. Forum, July 26th, 2016). On that basis, the Panel considers that the initial concealment of identity of the owner of the disputed domain until the present proceedings is a subsidiary element indicating registration and use of the disputed domain name in bad faith by the Respondent (See e.g. Fifth Third Bancorp v. Secure Whois Information Service, WIPO Case No. D2006-0696, September 14th, 2006). Finally, the Panel agrees with the view that an offer to sell the domain name for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name is not only evidence of, but conclusively establishes that the domain name has been registered and is being used in bad faith (See e.g. CBS Broadcasting Inc v. Gaddoor Saidi, WIPO Case No. 2000-0243, June 2nd, 2000). The Panel therefore finds that the bid offer made by the Respondent to the Complainant is additional evidence of registration and use in bad faith.
|