The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).
No content is found at the address at present; the Complainant has supplied a screenshot of an error page associated with the online service Vistaprint (which the Panel knows to be a brand of the Respondent, through consultation of the Cimpress website), although neither the Case Administrator nor the Panel have since been able to reach any page at the address. It appears to the Panel that one of the services offered by Vistaprint is web hosting in conjunction with domain name management; as such, it can be found that this is, in essence, a case of passive holding since registration in conjunction with the minimal difference between the disputed Domain Name and the registered trademark.
It can be difficult for a Panel to find use in bad faith where a Complaint is made immediately after registration, especially where nothing is known about the circumstances of the Respondent (e.g. a pattern of conduct) and there is no evidence of specific fraudulent or deceptive activity (e.g. emails using a domain name purporting to come from the Complainant). (While there are cases under the UDRP ostensibly relating to the Respondent or a member of its corporate family, these are of limited value to an assessment of conduct, given the Respondent's apparent business model as a provider of web services to a very wide range of its users).
It is however clear, in UDRP jurisprudence, that 'passive holding' can constitute use in bad faith, especially where a Panel cannot realistically identify a situation where use would be in good faith (see WIPO Jurisprudential Overview, para 3.2 including its summary of the 'Telstra' line of cases (D2000-0003 <TELSTRA.ORG>). As in, for example, CAC 101624 <BOEHRINNGER-INGELHEIM.COM>, the Panel notes that if the intention were, for instance, to provide a critical analysis of the Complainant, a good faith attempt to do so could use an aspect of the mark rather than a misspelling, and ensure that users were not confused through explanatory text on the website.
The Panel notes the need for bad faith to be established to its satisfaction. For instance, see CAC 101570 <KALMARPARTS.NET>, a passive holding case where use in bad faith was not made out to the satisfaction of the Panel, in particular due to the failure of the Complainant in that case to create a presumption that the Respondent must have been aware of the Complainant's rights when it registered the disputed domain names, in light of the nature of the business in question. In the present case, the combination of the passive holding with the substitution of a typo-variant character (in a way that makes no independent linguistic sense) means that the Panel is well able to be so satisfied.
The Panel acknowledges that the Complainant contends that the conduct of the Respondent disrupts the Complainant’s business, by diverting consumers away from its legitimate website at <ARCELORMITTAL.COM>. There is no evidence of specific activity in this area; complaints under this aspect of the UDRP (paragraph 4(b)(iii)) are more usually based on the competitive relationship between the parties or a broader pattern of misuse. Nonetheless, the matters set out in paragraph 4(b) are non-exhaustive, and passive holding can fall within it, including but not limited to as an aspect of intentionally attempting to attract, for commercial gain, Internet users to the website through 'creating a likelihood of confusion' (paragraph 4(b)(iv)).The Respondent has taken no positive steps, to the knowledge of the Panel, to displace the possible likelihood of confusion. Moreover, the deliberate registration of a name combining a version of the name in which rights are held creates a clear presumption of knowledge and intention.
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