1. The Panel finds that the Complainant has established rights over the trademark AVAST based on the trademark registrations cited above and the related trademark certificates submitted as annexes to the Complaint.
The Panel finds that the disputed domain name <avast.org> is identical to the Complainant’s trademark AVAST as it includes the Complainant’s trademark in its entirety with the mere addition of the generic Top Level Domain “.org” whilst the second disputed domain name <avwst.com> is confusingly similar to the Complainant’s trademark, from which it differs only for the substitution of the third letter of the Complainant’s trademark “a” with the letter “w” and the generic Top Level Domain “.com”. As stated in a number of prior decisions rendered under the UDRP, these minor changes are not sufficient to prevent a finding of identity or confusing similarity. In addition, the registration of <avwst.com> is a clear typosquatting since it includes a clear misspelling of the Complainant’s trademark AVAST.
2. The Complainant stated that the Respondents, which have not filed a Response, are not authorized by the Complainant in any way. Based on the records, the Respondents are not commonly known by the disputed domain names or by a name corresponding to the disputed domain names.
According to the documents submitted by the Complainant, which have not been contested by the Respondent, the first disputed domain name <avast.org> was pointed in the past to a pay-per-click website displayed at the second disputed domain name <avwst.com> and, in 2018, to a website offering without authorization purported AVAST products for sale. The second disputed domain name <avwst.com>, instead, has been pointed to a parking page containing pay-per-click links connected to the Complainant and its competitors. The Panel finds that, in view of the described use of the disputed domain names, the Respondents have not made use, or demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services, or a legitimate non-commercial or fair use. Therefore, and in the absence of a Response, the Panel finds that the Complainant has made a prima facie case that the Respondents have no rights or legitimate interest in the disputed domain names.
3. As to bad faith at the time of the registration, the Panel finds that, in light of the identity and confusing similarity of the disputed domain names with the Complainant’s prior registered trademarks cited above, and in view of the well-known character of the Complainant’s trademark AVAST, the Respondent was more likely than not aware of the Complainant’s trademark at the time of the registration of the disputed domain names. Moreover, the explicit references to the Complainant’s trademark and products made on the websites to which the disputed domain names resolve or resolved indeed support the conclusion that the Respondents registered the disputed domain names with the Complainant’s trademarks in mind.
With regard to the use of the disputed domain names, the Panel notes that, as mentioned above, the disputed domain name <avwst.com> has been pointed since its registration to a web page with pay-per-click links related to products of the Complainant and its competitors.
The disputed domain name <avast.org> is, instead, currently pointed to an inactive website. However, it is well-established that passive holding of a domain name could amount to bad faith under certain circumstances, including the prior use of the domain name made by the registrant and the correspondence of the disputed domain name to a well-known trademark. In the present case, as mentioned above, the disputed domain name <avast.org>, identical to the registered and well-known trademark AVAST, was redirected in the past to a pay-per-click page displayed at <avwst.com> and, in 2018, to a website offering without authorization purported AVAST products for sale.
In view of the above-described use of the disputed domain names made by the Respondents, the Panel finds that the Respondents intentionally attempted to attract Internet users to their websites for commercial gain, by causing a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of their websites according to paragraph 4(b)(iv) of the Policy.
Furthermore, the Panel finds that, in view of the circumstances of the case, the Respondents’ use of privacy services to hide their contact details in the Whois records and their lack of Response are additional evidence of their bad faith.
Therefore, the Panel finds that the Respondents registered and are using the disputed domain names in bad faith.
|