Paragraph 4(a) of the Policy directs that a complainant must prove each of the following for a panel to order a transfer of the domain name at issue:
(i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Taking each of these issues in turn, the Panel decides as follows:
A. Identical or Confusingly Similar
The Panel finds that the Complainant has provided sufficient evidence of unregistered trade mark rights in NORGE MINING.
The disputed domain name incorporates the Complainant’s NORGE MINING trademark in its entirety with the addition of a hyphen. The Panel finds that the presence of a hyphen instead of a space does not affect the appearance of the disputed domain name in relation to the Complainant’s trademark, noting in particular that a space is not capable of representation in a domain name.
Finally, it is well established that generic Top-Level Domain suffixes, including .LTD, are disregarded in the assessment of the similarity between the disputed domain name and the Complainant’s mark.
On the basis of these considerations, the Panel concludes that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights, in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name, as follows:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Panel has considered the evidence put forward by the Complainant and is of the view that the Complainant has presented a prima facie showing of the Respondent's lack of rights or legitimate interests in the disputed domain name. The Respondent has failed to rebut that showing.
Given the above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith, as follows:
“For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
On the basis of the evidence put forward by the Complainant, the Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(iv) of the Policy.
First, with regard to bad faith registration, the Panel agrees with the Complainant's assertions that the Respondent was aware of the Complainant at the time that the disputed domain name was registered in 2020 and registered it in bad faith with the Complainant in mind. Furthermore, it is clear that the disputed domain name was used in bad faith by the Respondent to intentionally attract, for commercial gain, internet users to his website by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of his website, in accordance with paragraph 4(b)(iv). The Panel also finds that the Respondent's use of a privacy service to hide his identity further evidences the Respondent's bad faith.
The Panel therefore concludes that the Complainant has succeeded in proving that the disputed domain name has been registered and is being used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
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