In accordance with paragraph 4(a) of the Policy, to obtain transfer of the disputed domain name, the Complainant must prove the following three elements: (i) the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in the disputed domain name; and (iii) the Respondent has registered the disputed domain name and is using it in bad faith.
Under paragraph 15(a) of the Rules, “A Panel shall 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”.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the Complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.
Apart from the inconsequential gTLD ".com", which may be ignored, the disputed domain name <pepsic0.com> comprises a homograph of the Complainant's PEPSICO mark: instead of the letter "o" there appears the number "0". It is thus confusingly similar to a mark in which the Complainant has rights.
The Panel finds that the PEPSICO mark is distinctive and widely known. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show that it does have rights or legitimate interests in the disputed domain name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
It may be inferred from the registration of the disputed domain name and from the email sent from it on the same day, that when the Respondent registered the disputed domain name, the Respondent was well aware of the Complainant's rights in the famous PEPSICO mark and intended to masquerade as the Complainant.
The disputed domain name has been used to create a likelihood of confusion with the Complainant’s trademark as to the source of the Respondent’s emails sent from the disputed domain name. The mail server which the Respondent configured in the disputed domain name's DNS records has been used in an attempt to receive sensitive banking information from the Complainant's vendors. Given the fame of the PEPSICO mark, the Panel concludes that the Respondent intended to exploit commercially its trademark significance in order to conduct fraudulent BEC operations targeting the Complainant's vendors.
The Panel finds that the disputed domain name was registered and is being used in bad faith.
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