The Complainant has demonstrated that it has UDRP-relevant rights in its various GOLA registered trademarks. The second level of the disputed domain name contains the Complainant’s GOLA trademark in its entirety, together with a dash or hyphen and the letters “UK”. Neither the presence of the hyphen in the disputed domain name, nor the letters “UK”, usually taken to be an abbreviation of the geographical designation “United Kingdom”, alter the fact that the Complainant’s GOLA mark is fully recognizable therein on a straightforward side-by-side comparison. It is the first and dominant element. The generic Top Level Domain in respect of the disputed domain name, in this case “.com”, is typically disregarded for the purposes of the comparison under the first element analysis of the Policy. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s GOLA trademark.
The Complainant does not directly address the provisions of the Policy, in particular, paragraphs 4(c)(i), 4(c)(ii) and 4(c)(iii), regarding whether the Respondent has rights or legitimate interests in the disputed domain name. However, the Complainant does note that there is no commercial relationship between the Parties, that the Complainant has not authorized the Respondent to use its trademark in the disputed domain name and on the associated website, and that the content set out on the website operated under the disputed domain name replicates the Complainant’s own website material without permission, evidencing this with a side by side screenshot comparison. The Complainant also submits that, based on a test purchase, the Respondent is not supplying the Complainant’s genuine product or, for that matter, any product. The Complainant suggests that the Respondent is merely collecting the Complainant’s customers’ data without permission. The Panel finds that these submissions are sufficient to constitute the requisite prima facie case that the Respondent has no rights and legitimate interests in the disputed domain name.
The Respondent has failed to rebut the Complainant’s said prima facie case in that it has not filed a Response in the administrative proceeding. The Panel has considered the possibility that the Respondent might be selling the Complainant’s genuine goods under the Complainant’s GOLA trademark. However, even if the Respondent had shown this, it would have been unable to establish all of the requirements of the well-known “OKI Data test” (see: Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). Notably, it would have had to establish that it was actually offering for sale only the trademarked goods and to show that its website accurately and prominently disclosed its (lack of) relationship with the Complainant. There is no evidence that the Respondent is selling genuine, or any, goods, and no such accurate and prominent disclosure is shown on the Complainant’s screenshots of the website associated with the disputed domain name.
The Panel therefore considers that it is reasonable in all of the above the circumstances to find that that the Respondent has no rights or legitimate interests in the disputed domain name.
Turning to the question of registration and use in bad faith in respect of the disputed domain name, the Complainant has made the unchallenged averment that the website associated with the disputed domain name contains content cloned from the Complainant’s website. The said website and the disputed domain name make prominent use of the Complainant’s GOLA trademark and the Complainant’s own website imagery. In these circumstances, the Respondent cannot have registered the disputed domain name other than in the full knowledge of the Complainant’s trademark.
The Complainant makes the uncontradicted submission that the Respondent registered and used the disputed domain name for fraudulent purposes and, in particular, to obtain personal data from the Complainant’s customers by impersonating the Complainant. This submission is reinforced by the Complainant’s assertion that the Respondent’s website collects such personal data and that no goods were ever delivered following its test purchase, despite the price having been taken from the purchasing party.
The allegations made by the Complainant of fraudulent activity on the Respondent’s part are of a serious nature and call for an answer from the Respondent. No such answer has been forthcoming and the Respondent has simply maintained its silence. In these circumstances, the Panel notes that Respondent has failed to advance any plausible good faith motivation for its registration and use of the disputed domain name.
In the absence of any relevant evidence or submissions from the Respondent to the contrary, the Panel considers it reasonable to infer from the facts and circumstances of this case that the Respondent had knowledge of the Complainant and its GOLA trademark when the Respondent registered the disputed domain name and, likewise, that it had the requisite intent to target such mark unfairly for its own commercial gain. The Panel finds that this constitutes registration in bad faith within the meaning of the Policy. The Panel also considers it reasonable to infer that, having registered the disputed domain name, the Respondent proceeded to use it in connection with cloned aspects of the Complainant’s website in order to confuse consumers into giving up their valuable personal data. The Panel finds that this constitutes use in bad faith within the meaning of the Policy.
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