Vistex, Inc. v Alexander Mary

WIPO Case No. DCC2024-0007

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Vistex, Inc. v. Alexander Mary

Case No. DCC2024-0007

1. The Parties

The Complainant is Vistex, Inc., United States of America (“United States”), represented by Neal & McDevitt,

United States.

The Respondent is Alexander Mary, Canada.

2. The Domain Name and Registrar

The disputed domain name <vistexboost.cc> is registered with Gname.com Pte. Ltd. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2024.
On March 13, 2024, the Center transmitted by email to the Registrar a request for registrar verification in
connection with the disputed domain name. On March 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 (Redacted for privacy) and contact information in the Complaint.
The Center sent an email communication to the Complainant on March 15, 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 March 21, 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 March 26, 2024. In accordance with the Rules, paragraph
5, the due date for Response was April 15, 2024. The Respondent did not submit any response.
Accordingly, the Center notified the Respondent’s default on April 17, 2024.

The Center appointed George R. F. Souter as the sole panelist in this matter on April 18, 2024. 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

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4. Factual Background

The Complainant is a United States corporation, founded in 1999, and provides, under its VISTEX
trademark, software and related services for managing pricing, trade, royalties and incentive programs which
are crucial for business revenue generation. The Complainant currently has 20 global offices, and has 2,000

employees.

The Complainant has registered its VISTEX trademark widely across the world, including United States
Registration number 4494634, dated March 11, 2014, International Registration number 1196844, dated
January 27, 2014 and European Union registration number 1196844, also dated January 27, 2014.

The disputed domain name was registered on December 20, 2023, and resolves to a website which invokes the Complainant, and extends to using, inter alia, the Complainant’s VISTEX trademark in its stylized form.

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 alleges the disputed domain name is confusingly similar to its VISTEX trademark, contains its VISTEX trademark in its entirety, together with only the descriptive or non-distinctive word “boost”.

The Complainant claims that the Respondent lacks rights or legitimate interests to the disputed domain name, in particular that the Respondent is not generally known by the disputed domain name, and that it has never granted permission to the Respondent in connection with the use of its VISTEX trademark in connection with the registration of a domain name, or otherwise.

The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in
bad faith, in connection with the use of the website mentioned above. The Complainant has also drawn the

Panel’s attention to an attempt by the Respondent to impersonate the Complainant.

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.

The Panel finds the mark is recognizable within the disputed domain name. Accordingly, the disputed domain name is confusingly similar to the mark for the purposes of the Policy.

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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.

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.

Panels have held that the use of a domain name for illegal activity, here, phishing, 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 disputed domain name constitutes bad faith under the Policy.

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

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 <vistexboost.cc> be transferred to the Complainant.

/George R. F. Souter/
George R. F. Souter
Sole Panelist
Date: May 2, 2024