It is necessary for the Complainant, if it is to succeed in this administrative proceeding, to prove each of the three elements referred to in paragraph 4(a) of the Policy, namely that:
(i) the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interest in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel finds that the disputed domain name < arcellomittal.com> is confusing similar to the word trademarks, domains and company name of the Complainant.
The obvious misspelling of the Complainant’s trademark ARCELORMITTAL®, i.e. the addition of the letter “L” after the first "L" and the deletion of the letter “R” in the middle, is characteristic of a Typosquatting practice intended to create confusing similarity between the Complainant’s trademark and the disputed domain name. Previous panels have found that the slight spelling variations does not prevent a domain name from being confusing similar to the Complainant’s trademark. See CAC Case 102625 <ARCEIORMLTTAL.COM> and WIPO Case No. D2020-3457 <arcelormltal.com> (“As the disputed domain name differs from the Complainant’s trademark by just two letters, it must be considered a prototypical example of typosquatting – which intentionally takes advantage of Internet users that inadvertently type an incorrect address (often a misspelling of the complainant’s trademark) when seeking to access the trademark owner’s website. WIPO Overview 3.0 at section 1.9 states that “[a] domain name which consists of a common, obvious, or misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.”).
Furthermore, the Complainant contends that the addition of the gTLD “.COM” does not change the overall impression of the designation as being connected to the Complainant’s trademark. It does not prevent the likelihood of confusion between the disputed domain name and the Complainant, its trademark and its domain names associated.
Indeed, as reminded in the WIPO Overview 3.0 §1.11.1, “the applicable Top Level Domain (“TDL”) in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusion similarity test”.
Consequently, the disputed domain name <arcellomittal.com> is confusingly similar to Complainant’s trademark ARCELORMITTAL®.
Further the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant argues that the Respondent is not related to the Complainant and rightfully contends that the Respondent has not developed a legitimate use in respect of the disputed domain name.
Moreover, the Complainant contends and provides evidence that the disputed domain name resolves to a website that planned phishing via e-mail or offering Complainant´s products in competition with the Complainant. Competing use is not considered a bona fide offering of goods or services, nor a legitimate non-commercial or fair use.
In lack of any Response from the Respondent, or any other information indicating the contrary, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant also referred to the distinctiveness and reputation of its Arcelormittal trademarks.
This makes it highly unlikely that the Respondent had no knowledge of the Complainant's prior trademark rights at the time of registration of the disputed domain name.
The Complainant rightfully contended that the Respondent has used the disputed domain name intentionally to attract visitors for commercial gain by creating confusion with the Complainant’s trademarks, and that the Respondent has used the disputed domain name with that intention, namely in bad faith. Please see CAC Case No. 102827, JCDECAUX SA v. Handi Hariyono (“There is no present use of the disputed domain name but there are several active MX records connected to the disputed domain name. It is concluded that it is inconceivable that the Respondent will be able to make any good faith use of the disputed domain name as part of an e-mail address.”). Reference is made also to: CAC case N° 101036, Boehringer Ingelheim Pharma GmbH & Co. KG vs. SKYRXSHOP - dulcolax.xyz and WIPO Case no. D2014-0306 Boehringer Ingelheim Pharma GmbH & Co. KG v. Klinik Sari Padma, BAKTI HUSADA.
Furthermore, the Respondent is using a hidden identity. But this argument is not to be discussed further because bad faith is evident, whatsoever.
Accordingly, the Panel finds that the disputed domain name was both registered and used in bad faith and that the Complaint succeeds under the third element of the Policy.
|