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. Thus, the Panel accepts the contentions of the Complainant as admitted by the Respondent.
A. The Disputed Domain Name is Identical or Confusingly Similar to a Trademark or Service Mark in which the PepsiCo has Rights within the Meaning of the Policy.
The Complainant has, to the satisfaction of the Panel, shown that it has valid rights for the trademarks PEPSI and PEPSICO and for the Complainant’s name “PepsiCo”. Adding the letters "gdv" does not help significantly to distinguish the disputed domain name from the names and marks in which the Complainant has established rights since PEPSI, PEPSI-COLA, and PEPSICO are well known and famous trademarks associated in the public mind with the Complainant's business. The top level domain “.com” is to be neglected in this respect.
The Panel therefore considers the disputed domain name as incorporating either the well-known PEPSI trademark or the entirety of the PEPSICO mark, appending only descriptive or generic acronym "gdv", and being confusingly similar to PEPSI, PEPSI-COLA, and PEPSICO marks in which the Complainant has established rights in accordance with paragraph 4(a)(i) of the Policy.
B. The Respondent Has No Rights or Legitimate Interests in Respect of the Disputed Domain Name Within the Meaning of the Policy.
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, since the Respondent is not a licensee of the Complainant nor has the Complainant granted any permission or consent to use its trade marks in a domain name.
The pertinent WHOIS information of the Respondent does not resemble the domain name. Therefore, on this record, the Respondent is not commonly known by the disputed domain name to have demonstrated that it has rights to or legitimate interests under Policy 4(c)(ii). As the website linked with the disputed domain name could not be reached, it does not constitute a bona fide offering of goods and services under Policy 4(c)(i) or a legitimate non-commercial fair use under Policy 4(c)(iii).
Furthermore, the Complainant has established the fact, that the disputed domain name was registered for purposes of carrying out phishing attacks spoofing the Complainant’s identity to send fraudulent emails for financial gain. Such use of a domain name for illegal activity can never confer rights or legitimate interests on a Respondent.
Accordingly, the Panel holds that the Respondent has no rights or legitimate interest in respect of the disputed domain name within the meaning of paragraph 4(a)(ii) of the Policy.
C. The Disputed Domain Name has been Registered and is Being Used in Bad Faith within the Meaning of the Policy.
The Respondent’s registration and use of the confusingly similar disputed domain name is the Respondent’s attempt to intentionally attract, for commercial gain, internet users to its website or other online location and is thus evidence of the Respondent’s bad faith pursuant to Policy 4(b)(iv).
Therefore, the disputed domain name was operated by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or on-line location per Policy paragraph 4(b).
The Respondent also attempted to commercially exploit the trademark significance given the disputed domain name was used to lure victims into mistakenly believing that an email was being sent to them from someone on behalf of the Complainant when the email was actually fraudulent.
The fact the website does not resolve currently to an active website is immaterial as even a respondent's failure to make an active use of a domain name may satisfy the requirements of 4(a)(iii) of the Policy.
Here, the disputed domain name, which is actually configured to host mail records, and is also likely being used to send fraudulent emails for the Respondent's own commercial gain in receiving bulk orders pretending to be someone associated with the Complainant's business constitutes bad faith registration and use of the disputed domain name.
Finally, the likelihood is that the disputed domain name was registered with inaccurate or false Whois information as the address at the location in the Whois record does not exist on Google Maps. This is additional evidence of bad-faith registration and use.
For all of the foregoing reasons, 4(a)(iii) of the Policy has been satisfied.
|