Rocsys B.V. v annie Macedo, LuxairGroup

WIPO Case No. D2023-4824

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Rocsys B.V. v. annie Macedo, LuxairGroup

Case No. D2023-4824

1. The Parties

The Complainant is Rocsys B.V., Netherlands (Kingdom of the), represented internally.

The Respondent is annie Macedo, LuxairGroup, Bulgaria.

2. The Domain Name and Registrar

The disputed domain name <rocsys.org> (the “Domain Name”) is registered with Hostinger Operations, UAB

(the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 21, 2023. On November 21, 2023, the Center transmitted by email to the Registrar a request for registrar verif ication in connection with the Domain Name. On November 22, 2023, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent (Redacted for Privacy, Privacy Protect, LLC (PrivacyProtect.org)) and contact information in the Complaint. The Center sent an email communication to the Complainant on November 24, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 27, 2023.

The Center verif ied that the Complaint together with the amended Complaint satisf ied the formal
requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for
Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for
Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notif ied the Respondent of the Complaint, and the proceedings commenced on December 1, 2023. In accordance with the Rules, paragraph 5, the due date for Response was December 21, 2023. The Respondent did not submit any response. Accordingly, the Center notif ied the Respondent’s default on January 10, 2024.

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The Center appointed Nicholas Smith as the sole panelist in this matter on January 17, 2024. The Panel
f inds that it was properly constituted. The Panel has submitted the Statement of Acceptance and
Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the

Rules, paragraph 7.

4. Factual Background

The Complainant is a multinational company headquartered in the Netherlands (Kingdom of the) and which it has used since 2019.

established in 2019 focused on the development of robotic solutions for electric vehicle charging
inf rastructure. The Complainant offers its goods and services under the trademark ROCSYS (the “ROCYS
The Complainant holds a European Union trademark registration for the ROCSYS Mark (registration number
018496184), registered on October 30, 2021, for goods and services in classes 9, 37, and 42.

The Domain Name was registered on October 23, 2023. The Domain Name does not resolve to an active website. The Complaint contains evidence that the Respondent has sent emails from an address ending in “@rocsys.org” purporting to be official emails from the Complainant regarding the payment of funds to an account unconnected to the Complainant.

5. Parties’ Contentions
A. Complainant

The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name.

Notably, the Complainant contends that:

a) It is the owner of the ROCSYS Mark, having registered the ROCSYS Mark in the European Union and other jurisdictions. The Domain Name is identical to the ROCSYS Mark.

b) There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Complainant has not granted any license or authorization for the Respondent to use the ROCSYS Mark. The Respondent is not commonly known by the ROCSYS Mark, nor does it use the Domain Name for a bona fide purpose or legitimate noncommercial purpose. Rather, the Domain Name is used for emails impersonating the Complainant, which does not provide the Respondent with rights or legitimate interests in the Domain Name.

c) The Domain Name was registered and is being used in bad faith. The Domain Name is being used to

create phishing emails that impersonate the Complainant directing the payment of sums of money. This
amounts to an attempt to perpetuate f raud.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

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6. Discussion and Findings
A. Identical or Confusingly Similar

It is well accepted that the f irst element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), section 1.7.

Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1.

The Panel f inds the entirety of the mark is reproduced within the Domain Name. Accordingly, the Domain

Name is identical to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7.

Based on the available record, the Panel f inds the f irst element of the Policy has been established.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name.

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. WIPO Overview 3.0, section 2.1.

Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has not rebutted the Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the Domain Name.

The Panel considers that the record of this case ref lects that:

- Before any notice to the Respondent of the dispute, the Respondent did not use, nor has it made demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide of fering of goods or services. Paragraph 4(c)(i) of the Policy, and WIPO Overview 3.0, section 2.2.

- The Respondent (as an individual, business, or other organization) has not been commonly known by the Domain Name. Paragraph 4(c)(ii) of the Policy, and WIPO Overview 3.0, section 2.3.

- The Respondent is not making a legitimate noncommercial 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. Paragraph 4(c)(iii) of the Policy, and WIPO Overview 3.0, section 2.4.

- The record contains no other factors demonstrating rights or legitimate interests of the Respondent in the Domain Name.

The Domain Name does not redirect to an active website. Furthermore, the Respondent’s use of the
Domain Name is in connection with a phishing scheme, namely to send emails passing itself of f as the

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Complainant with the aim of misleading recipients into paying sums of money into accounts presumably connected to the Respondent. Panels have held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of f raud) can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1.

Based on the available record, the Panel f inds the second element of the Policy has been established.

C. Registered and Used in Bad Faith

The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.

Panels have held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) constitutes bad faith. WIPO Overview 3.0, section 3.4. Having reviewed the record, the Panel finds the Respondent’s registration and use of the Domain Name constitutes bad faith under the Policy. The Domain Name has been used to create an email account f rom which it sent emails impersonating the Complainant seeking to mislead recipients as to the identity of the sender for its own commercial gain. Such conduct is deceptive, illegal, and in previous UDRP decisions has been found to be evidence of registration and use in bad faith. The Coca-Cola Company v. Marcus Steiner, WIPO Case No. D2012-1804.

Based on the available record, the Panel f inds the third element of the Policy has been established.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <rocsys.org> be transferred to the Complainant.

/Nicholas Smith/
Nicholas Smith
Sole Panelist
Date: January 31, 2024