The Constant Company LLC v Ansh Ansh

WIPO Case No. D2024-5116

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

The Constant Company LLC v. Ansh Ansh

Case No. D2024-5116

1. The Parties

The Complainant is The Constant Company LLC, United States of America (“United States”), represented by

Walters Law Group, United States.

The Respondent is Ansh Ansh, Bangladesh.

2. The Domain Name and Registrar

The disputed domain name <buyvultraccount.com> is registered with Cosmotown, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2024. On December 12, 2024, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 14, 2024, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 16, 2024, 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 December 18, 2024.

The Center verified that the Complaint together with the amended Complaint satisfied 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 notified the Respondent of the Complaint, and the proceedings commenced on December 19, 2024. In accordance with the Rules, paragraph 5, the due date for Response was January 8, 2025. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 10, 2025.

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The Center appointed David Stone as the sole panelist in this matter on January 22, 2025. The Panel finds 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 provides website hosting and cloud computing services.

Among others, the Complainant owns the following registered marks (the “Mark”):

- VULTR: US Trademark registration No. 4636137, registered on November 11, 2014 in international classes 9 and 42; and

- VULTR: International Registration No. 1635056, registered on November 12, 2021 in international

classes 9 and 42.

The Complainant has provided its services under the Mark since 2013. The Complainant owns and operates
the website located at <vultr.com>, which has been used for almost a decade in connection with the
provision of website hosting and cloud computing services. The Complainant also owns US Trademark
registration No. 5971584 for , registered on January 28, 2020 in international class 42 (the “V Device”).

The disputed domain name <buyvultraccount.com> was created on October 17, 2024. At the date of this decision, the disputed domain name returns an error. However, the Complainant has provided evidence that, at least in November 2024, the Respondent was maintaining a website at the disputed domain name

which: (i) used the Mark prominently and numerously; (ii) used the V Device mark prominently and in the

top left-hand corner; and (iii) used a similar color scheme to the Complainant’s official website.

On November 14, 2024, the Complainant sent a cease-and-desist letter to the Respondent. The

Respondent did not respond.

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 disputed domain name.

The Complainant contends that, under the first element, the disputed domain name comprises the Mark with two descriptive terms “buy” and “account” surrounding the Mark, which do nothing to avoid confusing similarity between the Mark and the disputed domain name.

Under the second element, the Complainant contends that the Respondent has no connection or affiliation with the Complainant and has not received any authorization, license, or consent, whether express or implied, to use the Mark. The Respondent is not commonly known by the Mark and does not hold any trademarks for the disputed domain name. The Complainant also contends that the disputed domain name cannot constitute fair use by the Respondent because the terms “buy” and “account” in combination with the Mark create a risk of implied affiliation. Further, the Complainant contends that the Respondent’s use of the V Device and the similar “look and feel” of the Respondent’s website at the disputed domain name cannot confer legitimate interests on the Respondent because the Respondent’s use of the disputed domain name purports to provide unauthorized access to the Complainant’s services.

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Under the third element, the Complainant contends that it is more probable than not that the Respondent was fully aware of the Complainant and its Mark at the time of registration. The Respondent registered the disputed domain name to conduct illegal activity, in particular, the Respondent’s purported sale of unauthorized access to the Complainant’s services. The Respondent uses a privacy service and did not respond to the Complainant’s cease-and-desist letter.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

It is well accepted that the first 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.

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 entirety of the mark is reproduced within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7.

Although the addition of other terms, here “buy” and “account”, may bear on assessment of the second and third elements, the Panel finds the addition of such terms does not prevent a finding of confusing similarity between the disputed domain name and the mark for the purposes of the Policy. WIPO Overview 3.0,

section 1.8.

The Panel finds the first 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.

Although 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 difficult 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 (although the burden of proof always remains on the complainant). 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 available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed 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 disputed domain name such as those enumerated in the Policy or otherwise.

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Further, the website to which the disputed domain name resolves does not appear to fall under the safeguards of fair use envisioned under section 2.8 of the WIPO Overview 3.0, given there is no prominent disclaimer on the website as to the lack of association with the Complainant. To the contrary, the website uses the V Device in the top left corner where consumers would expect to find the brand of the website operator.

Furthermore, panels have held that the use of a domain name for illegitimate activity, here, claimed unauthorized account access and impersonation/passing off, can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1.

The Panel finds 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.

In the present case, the Panel notes that, at least in November 2024, the Respondent was maintaining a
website at the disputed domain name which: (i) used the Mark prominently and numerously; (ii) used the V
Device mark prominently and in the top left-hand corner; and (iii) used a similar color scheme to the
Complainant’s official website.

Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent’s registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1.

Panels have found that evidence of a respondent seeking to cause confusion supports a finding that a respondent has registered a domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark. WIPO Overview 3.0, section 3.1.4.

The Panel finds that the content of the website hosted at the disputed domain name is strongly suggestive of bad faith because it is evidence of the Respondent seeking to cause confusion. The nature of the Respondent’s website and its purporting to sell unauthorized access to the Complainant’s services shows an intention of the Respondent to confuse and thereby attract users to its website for commercial gain.

Further, panels have held that the use of a domain name for illegitimate activity, here, claimed unauthorized account access and impersonation/passing off constitutes bad faith. WIPO Overview 3.0, section 3.4.

Furthermore, the Respondent has not attempted to refute any of the Complainant’s contentions, which casts additional doubt on the nature of its conduct. WIPO Overview 3.0, section 3.2.1.

Having reviewed the record, the Panel concludes that the actions of the Respondent in choosing the disputed domain name were aimed at attracting, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s Mark. The Panel therefore concludes that the disputed domain name was registered and used in bad faith.

The Panel finds that the Complainant has established the third element of the Policy.

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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 disputed domain name <buyvultraccount.com> be transferred to the Complainant.

/David Stone/ David Stone Sole Panelist Date: February 5, 2025