Decision for dispute CAC-UDRP-105676

The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain names.

The Complainant relies on its numerous registered trademarks, in territories around the world, including but not limited to the following:

Further, the Complainant operates its business using its portfolio of MAERSK related domain names including <maersk.com> (registered October 10, 1995), <maersk.us> (registered April 24, 2002) and <maersk.cn> (registered March 29, 2003).

The Complainant’s MAERSK brand is also active in several social media platforms such as LinkedIn, Instagram, Facebook, Twitter and YouTube. For example, Complainant’s official Facebook page https://www.facebook.com/Maersk has over three million followers worldwide.

FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:

Key aspects of the Complainant’s contentions are summarized below.

Complainant’s Background

The Complainant container logistics company was established in 1904, in Svendborg, Denmark by Arnold Peter Møller, who started out his activity in tramp shipping, where vessels were operating on the spot market without fixed schedules or port calls.

Today, the Complainant is the largest container logistics company in the world, with more than 100,000 employees and operations in more than 130 countries, moving about 12 million containers every year. The company is headquartered in Copenhagen, Denmark.

Registration of the disputed domain names

On April 27, 2023, the Respondent using the name “A.P. Moller – Maersk“ - located in Hong Kong - registered the disputed domain name <maerskrent.com>.

On January 5, 2023, the Respondent using the name “A.P. Moller – Maersk“ - located in Hong Kong - registered the disputed domain name <maersk.icu>.

On April 10, 2023, the Respondent using the name “Harry Maersk Vip Group“ - located in Indonesia - registered the disputed domain name <maerskcargo.net>.

On July 16, 2023, the Respondent using the name “xuxu“ - located in Hong Kong - registered the disputed domain name <maersk9.com>.

Consolidation Request

The Complainant claims that the disputed domain names are subject to common control for the following reasons: (i) all disputed domain names have the same registrar; (ii) all disputed domain names have the same name servers; (iii) all corresponding websites have a login page; (iv) all corresponding websites feature the Complainant’s white seven-pointed star logo; (v) the domain names the domain names <maerskrent.com>, <maersk.icu> and <maerskcargo.net> share similar e-mails: fundmaersk@gmail.com (for <maerskrent.com>, <maersk.icu>), maersk.fund@gmail.com (for <maerskcargo.net>); (vi) whois for the disputed domain name <maersk9.com>, <maerskrent.com> and <maersk.icu> all show the registrant location as Hong Kong.

First UDRP Element - disputed domain names are Confusingly Similar to Complainant’s Trademark

The Complainant asserts that the disputed domain names are confusingly similar to its MAERSK trademarks, as they incorporate the MAERSK mark in its entirety alongside an element such as the number 9 and generic terms (i.e. cargo and rent), suffixed to the mark as part of the domain name string along with the generic Top-Level Domains .com, .net and .icu. Complainant points to numerous trademark registrations and the fame in its MAERSK brand to support the Complainant’s contention that it has a significant portfolio of trademark registrations and a reputation in the MAERSK brand.

Second UDRP Element – The Respondents have no Rights or Legitimate Interests in the disputed domain names

The Complainant contends that the mere registration of a domain name does not establish rights or legitimate interests in a disputed domain name. Further, the Respondent is not a licensee, authorized agent, reseller of the Complainant, not is authorized in any way to use the Complainant’s trademarks or to register or use the disputed domain names. Complainant claims there is no evidence of demonstrable preparations to use nor actual use of the disputed domain names in connection with a bona fide offering of goods or services. Rather, the disputed domain names resolve to websites featuring the Complainant’s MAERSK mark which improperly seek to obtain revenues from internet users.

Third UDRP Element – The disputed domain names were Registered and are Being Used in Bad Faith

The Complainant asserts that its MAERSK trademark is distinctive and well-known in the container logistics sector, and that it is inconceivable that the Respondent was unaware of the Complainant at the time of registering the disputed domain names in 2023.

Respondents intentionally attempted to attract for commercial gain internet users to their website or other online location by creating a likelihood of confusion with the Complainant’s mark as to the source sponsorship, affiliation or endorsement of their website or location. Complainant argues that this assertion is supported by the use of the disputed domain names in connection with websites where the Complainant’s trademarks are misappropriated and where the Respondent profits from the payments of internet users following the login to the dedicated page. In the case <maersk.icu> which does not resolve to an active web site, the fact that it uses the Complainant’s famous trademark, that it is held by the Respondent who has utilized other disputed domain names to obtain profit is sufficient to constitute bad faith according to the passive holding doctrine as described in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Additionally, the Complaint argues bad faith due to a pattern of conduct on the part of the Respondents in registering domain names to prevent the owner of a trademark from reflecting such mark in a corresponding domain name. The Complainant contends that a pattern of conduct is evident through the registration of four disputed domain names all confusingly similar to the Complainant’s MAERSK mark.

Lastly, Complainant claims the Respondent’s lack of response to its cease-and-desist letters as further evidence of bad faith.

The above summarized facts and arguments asserted by the Complainant are not contested by the Respondents because no Response was filed.

NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED. 

The Complainant has, to the satisfaction of the Panel, shown the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).

The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain names (within the meaning of paragraph 4(a)(ii) of the Policy).

The Complainant has, to the satisfaction of the Panel, shown the disputed domain names have been registered and are being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).

The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.

LANGUAGE OF PROCEEDING

According to Rule 11 in the Rules for Uniform Domain Name Dispute Resolution Policy, (the “Rules”) “...the language of the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”

According to the information on the case file, the Registrar confirmed that the Respondents are the current registrants of the disputed domain names, and that the language of the respective registration agreements are English.

As neither party has asked to deviate from the English language as per the registration agreements, the Panel finds that this proceeding may be properly conducted in English.

CONSOLIDATION OF MULTIPLE RESPONDENTS

Complainant alleges that all three Respondents in this case are either alter egos of the same actor and/or subject to common control. Thus, Complainant seeks to consolidate three Respondents and four disputed domain names into a single proceeding.

Paragraph 10(e) of the UDRP Rules grants the Panel authority to “decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules.” Similarly, paragraph 3(c) of the UDRP Rules provides that a complaint “may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.” As stated in section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), when considering consolidation requests panels should look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency underpins such consideration.

Section 4.1.2 of WIPO Overview 3.0 sets out eleven factors, typically present in some combination, that prior panels have found to warrant consolidation:

• the registrants’ identity(ies) including pseudonyms,
• the registrants’ contact information including e-mail address(es), postal address(es), or phone number(s), including any pattern of irregularities,
• relevant IP addresses, name servers, or webhost(s),
• the content or layout of websites corresponding to the disputed domain names,
• the nature of the marks at issue (e.g., where a registrant targets a specific sector),
• any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>),
• the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue,
• any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s),
• any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s),
• any (prior) pattern of similar respondent behavior, or
• other arguments made by the complainant and/or disclosures by the respondent(s).

With consideration to the above factors, and the totality of circumstances of the case, the Panel has concluded that consolidation is warranted in part, denied in part.

According to the Registrar Verification in the case file, the names and the addresses of the three named Respondents are different. However, this difference in registrant details is not wholly dispositive as to whether consolidation should be granted, since registrars are not typically required to verify the identity of registrants.

Evidence of common control exists between the registrants of (i) <maerskrent.com>, <maersk.icu> and (ii) <maerskcargo.net> as shown by several relevant indicators:

• the similarity of the disputed domain name’s anatomy to one another, consisting of the MAERSK mark suffixed with a relevant generic term, namely “rent” and “cargo” (see WIPO Overview 3.0 s4.11.2(vi));
• similarity in the form of the e-mail addresses, namely fundmaersk@gmail.com and fund@gmail.com (see WIPO Overview 3.0 s4.11.2(ii));
• the use of similar fraudulent registration details, purporting to be the Complainant or part of the Complainant’s group, namely “Organization: A.P. Moller – Maersk”, and “Organization: Harry Maersk Vip Group” (see WIPO Overview 3.0 s4.11.2(ii));
• Other than the language used, the layout and content used in the websites associated with these disputed domain names is almost identical. According to the submitted screenshots, in the cases of <maerskrent.com> and <maersk.icu>, the text is in English, while in the case of the <maerskcargo.net> screenshot, the text is in Indonesian, however other than the language used, the sites have the same layout, color scheme, look and feel. Prior panels have found that common control may exist where the webpages associated with the disputed domain names are nearly identical (See, for example General Electric Company v. Marketing Total S.A. WIPO Case No 2007-1834, “...the domain names at issue point to nearly identical web pages“; (see WIPO Overview 3.0 s4.11.2(iv)))

On the other hand, there is insufficient evidence to establish common control with respect to the disputed domain name <maersk9.com>. Evidence against consolidation of this particular domain name in the instant case includes:

• The anatomy of the domain name does not follow the pattern in the above consolidated disputed domain names, here the mark MAERSK is suffixed with the numeric form “9”, rather than a generic term;
• The registrant details in the whois does not follow the pattern as per the above consolidated disputed domain names of using an alias or pseudonym related to the Complainant but rather merely gives the organization and contact as “xuxu”;
• The e-mail address chenxu37004@outlook.com is entirely different in structure and provider from the above consolidated disputed domain names;
• Screenshots submitted by the Complainant show a significantly different style, color scheme, and layout of the website associated with this domain name, compared to the other three sites mentioned above;

Accordingly, the arguments submitted by the Complainant for consolidation of the <maersk9.com> domain name are not persuasive.  

The fact that all four disputed domain names domain names share the same Registrar, name server and use of a Complainant’s logo within the website associated with such domain name is not, without more, sufficient to show common control. Although commonality of a name server is considered one of the consolidation factors enumerated in WIPO Overview 3.0 s4.11.2 (iii), typically several factors are present pointing to consolidation and the panel must weigh up the persuasiveness of each factor. The Panel, in accordance with its articulated powers under paragraphs 10 and 12 of the UDRP Rules, considered it useful to undertake limited additional research in order to assess the merits of the consolidation request. For this purpose, the Panel checked publicly available information concerning the Name Servers in question. According to such publicly available information, the name servers mentioned in the Complaint NS7.ALIDNS.COM and NS8.ALIDNS.COM may be associated with 1,341,322 domain names. In light of the high number of domain names associated with the name servers, commonality on this aspect, without more, is given low weight by the panel. Similarly, commonality in Registrar and use of the Complainant’s logo on the websites is afforded low weight and does not, without more, warrant consolidation.

Accordingly, the domain name maersk9.com shall be excluded from this instant proceeding. Should the Complainant wish to take actions with respect to that domain name, Complainant may do so in a separate proceeding.

On the other hand, the above circumstances, taken together, lead the Panel to conclude that it is more likely than not that the disputed domain names <maerskrent.com>, <maersk.icu> and <maerskcargo.net> are under common control, and that consolidation of the cases against those Respondents would be (i) fair and equitable to all parties and (ii) result in procedural efficiencies. Given such common control, hereinafter the two Respondents with the respective alter egos “A.P. Moller – Maersk“, and “Harry Maersk Vip Group“  shall be referred to by the singular term “Respondent”.  The term “disputed domain names” shall hereinafter collectively refer to <maerskrent.com>, <maersk.icu> and <maerskcargo.net>.

PRINCIPAL REASONS FOR THE DECISION

THREE ELEMENTS COMPLAINANT MUST ESTABLISH UNDER THE POLICY

According to Paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements to obtain an order that a disputed domain name should be transferred or cancelled:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests 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 has examined the evidence available to it and has come to the following conclusions concerning the satisfaction of the three elements of paragraph 4(a) of the Policy in these proceedings:

(A) THE COMPLAINANT’S RIGHTS AND CONFUSING SIMILARITY OF THE DISPUTED DOMAIN NAMES TO THE COMPLAINANT’S RIGHTS

Sufficient evidence has been submitted by the Complainant of its trademark rights in the term MAERSK in numerous classes and territories around the world. Such trademark rights were created and registered decades prior to April 27, 2023, January 5, 2023, and April 10, 2023, the respective creation dates of the disputed domain names. A nationally or regionally registered trademark confers on its owner sufficient rights to satisfy the requirement of having trademark rights for the purposes of standing to file a UDRP case. Accordingly, the Panel finds that the Complainant possesses rights in its MAERSK trademark such that it has standing under the Policy.

UDRP panels have held that where the asserted trademark is recognizable within a disputed domain name, the addition of a descriptive, generic or geographical term does not prevent a finding of confusing similarity. In the present case, the disputed domain names consist of the MAERSK trademark reproduced in its entirety, either alone or with the addition of the generic terms “rent” and “cargo”. The trademark MAERSK remains prominent in the disputed domain names, and its use alone or in combination with generic terms related to the Complainant’s business, infers that the domain name is somehow connected with the owner of the MAERSK trademark, a well-established brand in the shipping and logistics sector.

The TLD may usually be ignored for the purpose of determination of identity or confusing similarity between a domain name and the Complainant’s trademark as it is technical requirement of registration (see paragraph 1.11.1 WIPO Overview 3.0).

The inclusion of the terms “rent” and “cargo”, and use of the TLDs “.com”, “.icu” and “.net” in the disputed domain names name do not avoid confusion with the Complainant’s MAERSK trademark. Therefore, the Panel concludes that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy and the disputed domain names are identical to Complainant’s mark with respect to the disputed domain name <maersk.icu> or confusingly similar to Complainant’s mark with respect to the disputed domain names <maerskrent.com> and <maerskcargo.net>.

(B) RESPONDENT’S LACK OF RIGHTS OR LEGITIMATE INTERESTS IN THE DISPUTED DOMAIN NAMES

The second element of the Policy requires that the Complainant establishes that the Respondent has no rights or legitimate interests in the disputed domain name. The generally adopted approach, when considering the second element, is that if a complainant makes out a prima facie case, the burden of proof shifts to the respondent to rebut it; see, for example, WIPO Overview 3.0, section 2.1 (“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”). However, the burden of proof still remains with the Complainant to make out its prima facie case on a balance of probabilities. Moreover, the wording of paragraph 4(a)(ii) of the Policy requires a complainant to establish that the respondent has no rights or legitimate interests in the domain name in issue. Simply establishing that the complainant also has rights in the domain name in issue is insufficient.

Paragraph 4(a)(ii) of the Policy contemplates an examination of the available facts to determine whether a respondent has rights or legitimate interest in the domain name. Paragraph 4(c) sets out a list of circumstances through which a respondent may demonstrate that it does have such rights or interests.

The first circumstance, under Paragraph 4(c)(i), is where “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”. Here, according to screenshot evidence submitted by the Complainant, the disputed domain names at least previously resolved to active website content featuring the Complainant’s marks with no apparent disclaimer or disassociation from the Complainant. The Complaint confirms that the Respondent is not licensed, nor has any relationship with or authority to represent the Complainant in any way. The evidence submitted indicates that the websites associated with the disputed domain names are making use of the Complainant’s marks to attempt to obtain revenues from internet users by encouraging them, for example, to “Help your friends click to help them, and your friends will get extra benefits”. The Panel finds that this use does not amount to a bona fide offering or good or services or a legitimate noncommercial or fair use per Policy 4(c)(i) & (iii) and Respondent does not have rights or legitimate interests with respect of the domain name.

The second circumstance, under Paragraph 4(c)(ii), concerns cases where the respondent is commonly known by the domain name. Here, according to the registrar verification the Respondent names are respectively “A.P. Moller – Maersk“, and “Harry Maersk Vip Group“. The Panel finds these details to be false and unauthorized use of the Complainant’s MAERSK mark and impersonation of the Complainant and its group, as the Complainant confirmed it has never registered the disputed domain names at issue, nor has control of the e-mails associated with the registrations. As such, this second circumstance of legitimate rights or interests under the Policy is not applicable to the Respondent.

Regarding the third circumstance, under Paragraph 4(c)(iii) of the Policy, there is no evidence that the Respondent is making a legitimate non-commercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s MAERSK trademark. According to the content shown in the screenshots as submitted, none of the accepted categories of fair use - such as news reporting, commentary, political speech, education etc – are found to apply and the Panel concludes there is no legitimate non-commercial or fair use on the part of the Respondent.

Accordingly, the Complainant has sufficiently made out its prima-facie case on the second element of the Policy. Thus, the burden of proof is shifted to the Respondent to rebut the Complainant’s case. Here, because the Respondent has not participated in these proceedings, there is no such rebuttal to consider, and the Complainant prevails.

The Panel therefore concludes that neither the Respondent nor the evidence establishes that the Respondent has any right or legitimate interest to the disputed domain names. The Complainant has therefore also satisfied the requirement under paragraph 4(a)(ii) of the Policy.

(C) BAD FAITH REGISTRATION AND USE OF THE DISPUTED DOMAIN NAMES

The third element requires Complainant to show that the disputed domain names have been registered and used in bad faith under paragraph 4(a)(iii) of the Policy. See, e.g. Hallmark Licensing, LLC v. EWebMall, Inc., WIPO Case No. D2015-2202 (“The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true.”).

Further, Paragraph 4(b) of the Policy sets out a non-exhaustive list of four circumstances, any one of which may be evidence of the registration and use of a domain name in bad faith. The four specified circumstances are:

(i) circumstances indicating that the respondent has registered or 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 the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has 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 the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s 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 the respondent’s website or location or of a product or service on the site or location.

The Panel finds that the Complainant has shown that the Respondent registered and used the disputed domain names in bad faith in general (ie under paragraph 4(a)(iii) of the Policy), and specifically with respect to paragraph 4(b) (iii) and 4(b) (iv) as set out below.

The Complainant’s MAERSK trademark is distinctive and enjoys considerable reputation within the logistics industry, as the largest container logistic company in the world with more than 100,000 employees in more than 130 countries. Complainant’s mark has been found by a prior panel to be well known (see  A.P. Moller - Maersk A/S v. Name Redacted WIPO Case No. D2020-0248, “In the present circumstances, the distinctive nature of the Complainant’s MAERSK trademark, the fact that it is well known, the use by the Respondent of the Disputed Domain Name to promote a competing business, and the lack of any explanation from the Respondent as to why he registered the Disputed Domain Name lead the Panel to conclude the registration and use was in bad faith.”) The same logic applies in the instant case, and this Panel finds that the Respondent either knew, or should have known, that the disputed domain names would be confusingly similar to the Complainant's trademarks and that they registered the disputed domain name with knowledge of the Complainant's trademarks.

There is evidence that the Respondent is impersonating the Complainant by providing false information within its registration agreement for the disputed domain names. Thus, there is no legitimate evidence is commonly known by the disputed domain names and the Complainant asserts that the Respondent has never been affiliated with nor authorized by the Complainant to use the Complainant’s trademark(s) and/or register the disputed domain names. Nor is there any business or other association between the Complainant and the Respondent.

The evidence of targeting by Respondent is compelling. The disputed domain names comprise of Complainant’s distinctive MAERSK mark, either alone or with the addition of the related terms “rent”, and “cargo”. The use of such terms is clearly meant to represent services with which the Complainant can be closely and relevantly associated. According to the screenshots submitted, the disputed domain names resolved to login pages featuring the Complainant’s mark, with the potential to fraudulently harvest personal information. There is also screenshot evidence that the websites seek to gain financial benefits by falsely claiming an association with the Complainant. Further, the Respondent has improperly used the Complainant’s own trademark and/or corporate persona in the registration details for the disputed domain names. Thus, the evidence clearly demonstrates that the Respondent had the Complainant in mind when registering and using the disputed domain names.

There is a pattern of conduct establishing the Respondent registered the domain names in order to prevent the Complainant from reflecting the mark in the corresponding domain names. The Respondent’s registration and use of three similar names and associated websites, demonstrates that Respondent has engaged in a pattern of registering domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, and that the registration of the disputed domain names in the instant case is therefore in bad faith under Policy paragraph 4(b)(ii).

Additionally, the Respondent intentionally attempted to attract, for commercial gain, internet users to its web site or online location, by creating a likelihood of confusion with the Complainant’s MAERSK mark. Evidence in the case file indicates that at least one of the disputed domain names includes requests for actions (logins, clicks etc) that could commercially benefit the Respondent.  A customer looking for Complainant’s products and services could logically type “Maersk”, “Maersk Rent” or “Maersk Cargo” into a search engine. There is also evidence of links on YouTube to the disputed domain name <maerskrent.com>. Upon finding the disputed domain names through a search engine or via social media such as in the YouTube example, such customer would likely be confused into thinking the disputed domain names were associated with or somehow endorsed by the Complainant. The apparent intention by the Respondent to improperly attract internet users in this manner constitutes bad faith under Policy paragraph 4(b)(iv).

As a final point, the Panel may draw a negative inference from Respondent’s failure to reply to the cease-and-desist letters and silence though these proceedings.

In light of the above analysis, the Panel concludes that the Complainant has made out its case that the disputed domain names were registered and are being used in bad faith, and thus has satisfied the requirements under paragraph 4(a)(iii), 4b(ii) and 4(b)(iv) of the Policy.