Sasol Limited v. Ana Merk
Claim Number: FA1605001677050
Complainant is Sasol Limited ("Complainant"), represented by Daniel Greenberg of Lexsynergy Limited, United Kingdom. Respondent is Ana Merk ("Respondent"), New York, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <sasoll.co>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 31, 2016; the Forum received payment on May 31, 2016.
On May 31, 2016, NameCheap, Inc. confirmed by email to the Forum that the <sasoll.co> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 1, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@sasoll.co. Also on June 1, 2016, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 28, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an international petroleum, chemical, mining, and technology company with its head office in South Africa. Originally formed in 1950, Complainant later adopted the acronym SASOL and registered it as a public company under the name SASOL LIMITED in 1979. Complainant uses the SASOL mark in connection with its business. The mark is registered in numerous countries worldwide, and Complainant also claims common law rights in the mark arising from its widespread public recognition.
Respondent registered the disputed domain name <sasoll.co> in December 2015 through a privacy service. Complainant states that it has no association with Respondent and has never authorized or licensed Respondent to use its mark, and asserts that Respondent has never been known thereby. Complainant alleges that Respondent has used the disputed domain name to send phishing e-mails, impersonating Complainant's Chief Financial Officer (“CFO”) in an attempt to defraud Complainant's employees. Respondent also forwarded the domain name to Complainant's own website to support the impression that the domain name was connected with Complainant. The domain name subsequently was used to display a page of sponsored links, presumably generating revenue for Respondent. Complainant notes that prior to the filing of the Complaint, the registration for the disputed domain name was held in the name of a privacy service, WhoisGuard, Inc. c/o WhoisGuard Protected, which Complainant characterizes as a serial cybersquatter and typosquatter.
Complainant contends, based on the above grounds, that the disputed domain name is confusingly similar to Complainant's SASOL mark, that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights, that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and has been used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
The disputed domain name <sasoll.co> consists of Complainant's registered SASOL mark, an additional letter “l,” and the ".co" top-level domain. These additions are insufficient to distinguish the domain name from Complainant's mark. See, e.g., PayPal, Inc. v. Tip Powers / Moniker Privacy Services, D2015-0304 (WIPO Apr. 23, 2015) (finding <paypall.com> confusingly similar to PAYPAL); Enterprise Holdings, Inc. v. Paulette Hicks, FA 1556341 (Forum May 21, 2014) (finding <eenterprise.co> confusingly similar to E ENTERPRISE and ENTERPRISE). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates a typographical variation of Complainant's mark without authorization, and apparently its sole use has been in connection with a fraudulent phishing scheme. See, e.g., Thornburg Investment Management, Inc. v. VistaPrint Technologies Ltd, FA 1615194 (Forum May 26, 2015) (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in connection with a fraudulent scheme involving e-mail messages attempting to defraud Complainant by exploiting that confusion, is indicative of bad faith under paragraph 4(b)(iv). See, e.g., Thornburg Investment Management, Inc., supra. The Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sasoll.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 29, 2016
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