The Complainant owns the Benelux word trademark “BESIX”, the European Union figurative trademark “Besix”, thirteen identical national figurative trademarks and the Benelux figurative trademark “Besix”. The figurative trademarks consist of a combination of figurative and verbal elements: stripes of various colors (red, white and various shades of blue), beside which, written out in full, is the stylised blue word Besix. Within the trademarks, the verbal element “Besix” is predominant and constitutes the essential element to be taken into account when analysing the first UDRP condition.
BESIX, the Complainant’s trademarks, is included entirely in the disputed domain name <BESIX.GROUP>. It is considered that where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. Furthermore, BESIX Group, a trade name as well as the company name, is identical to the disputed domain name.
It should also be added that the confusion is all the more evident since the disputed domain name is used precisely in order to falsely give the impression that the emails sent under that domain are originating from the Complainant. There is therefore even greater confusion since the confusion not only is a consequence of the disputed domain name use, but the intended consequence of the disputed domain name use.
The Complainant's distinctive marks pre-date the registration of the disputed domain name. While the registration of the disputed domain name dates from March 8, 2019, the Complainant’s trademarks have been registered since February 10, 2010 and April 14, 2010, and the oldest domain names of the Complainant date back to 1997 (<besix.com>), 2001 (<besix.net>), 2003 (<besix.be>, <besix.fr>), 2004 (<besixgroup.com>) and 2007 (<besixgroup.be>).
The Respondent does not have any rights or legitimate interest in the disputed domain name. There is no relation between the disputed domain name holder and the Complainant; it is impossible to know the identity of the disputed domain name holder who hides behind an anonymous registration and therefore impossible to contact him/her; the e-mail addresses used are info@besix.group, order@besix.group, contact@besix.group, finance@besix.group, sales@besix.group, larosse@besix.group, which are very similar to existing addresses used by the Complainant or its team; the domain names holder usurps the identity of the BESIX Group and Peter Larosse, an employee of a Besix subsidiary and former employee of BESIX Group; he appears in the scam as a present employee of the Complainant and valid representative of the company ; the company number used is the one of Besix Group, which can be argued is worse than using a similar one.
Moreover, the lack of a right or legitimate interest arises from the fact, that the domain name holder does not hold, whether in the European Union, or elsewhere, any known trademark that corresponds, to a greater or lesser extent, to the disputed domain name; the Respondent is not known as a company or other organisation under the name “besix-group“ or “besix“ and the Complainant has never granted a licence to the domain name holder to use its trademark.
Even in case the Respondent would claim interest or right in the disputed domain name, it would fail proving that this (alleged) interest or right is legitimate. It should be stressed from the outset that, at the stage of analysing the right or the legitimate interest, it is impossible to consider as legitimate a case of identity theft and attempted fraud. It is contrary to fairness to register domain names, leave them unused in terms of website and use them to create mail addresses in order to scam and try to get a fraudulent advantage using the Complaint trademarks, name, logo and colours. Indeed, beyond looking at the domain names and the nature of their content, panels assess whether the overall facts and circumstances of the case support a claimed fair use.
Eventually, it should be stressed that Panels have categorically held that the use of domain names for illegal activity (e.g. phishing, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a Respondent.
In this respect, Complainant doesn’t have to prove that Respondent has been convinced of illegal activity by a Court. Panels have found that circumstantial evidence can support a Complainant’s otherwise credible claim of illegal Respondent activity. In this case, the existence of more than 200 identified victims, the deep enquiry by the police (still ongoing), and the nature of the fraud (a pure scam-scheme where hidden persons are trying to cheat the recipient of the e-mails and lead them to believe that the order is placed by the Complainant), are enough to demonstrate a blatant illegal activity.
Not only is it for sure that Respondent was aware of the existence of Complainant when registering the disputed domain name (the Complainant is the largest Belgian constructor and among the top 69 in the world), but the disputed domain name has been carefully chosen in order to be as close as possible to the Complainant’s websites, in order to exchange e-mails from a domain that appears as original as possible. Bad faith is blatant.
It is considered that the apparent intention of disrupting the business of the Complainant, through contacting its co-contractors under the identity of the Complainant, but using a different e-mail address to place fraudulent orders, should be interpreted as an attempt, by the disputed domain name holder, to knowingly create a risk of confusion between him and the Complainant. Such a conclusion is confirmed by the use of the trademark and the company name of the Complainant.
These circumstances, coupled with the use of the disputed domain name without the Complainant’s consent and the lack of information provided to DNS.be at the moment of registration, the use of e-mail addresses similar to those of the Complainant and of the same company number similar to the one of the Complainant (logically, the use of an identical number should be deemed more serious), tends to confirm the domain names holder’s bad faith.
In this case, arguments raised regarding the second condition may also be assessed as far as the third condition is concerned: such common assessment is recommended for example where clear indicia of bad faith suggest there cannot be any Respondent rights or legitimate interests (and vice-versa). In such cases, panels have found that the facts and circumstances of the case would benefit from a joint discussion of the policy elements.
NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.
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