WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Educational Testing Service v. Sameh Abd Elmonem, Infc

Case No. D2017-1745

1. The Parties

The Complainant is Educational Testing Service of Princeton, New Jersey, United States of America (“United States”), represented by Jones Day, United States.

The Respondent is Sameh Abd Elmonem, Infc of Mansoura, Egypt.

2. The Domain Name and Registrar

The disputed domain name <2ets.org> is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 12, 2017. On September 12, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 14, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

The Center verified that the 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 September 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 10, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 11, 2017.

The Center appointed Steven A. Maier as the sole panelist in this matter on October 23, 2017. 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 is a non-profit corporation engaged in educational testing and assessment. It is the owner of trademark registrations for the mark ETS in various jurisdictions, including United States trademark number 1166461 for ETS registered on August 25, 1981 in Classes 16, 41 and 42. The Complainant operates a website at “www.ets.org”.

The disputed domain name was registered on May 5, 2017. The Complainant has submitted evidence that the disputed domain name has been used for the purposes of a website at “www.2ets.org” which comprised an almost identical copy of the Complainant’s official website. The Complainant took steps to have the website suspended by the relevant registrar on August 17, 2017.

5. Parties’ Contentions

A. Complainant

The Complainant submits that the disputed domain name is identical or confusingly similar to its ETS trademark. It argues in particular that the inclusion of the number “2” before “ets” is not effective to distinguish the disputed domain name from the Complainant’s trademark.

The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that it has not licensed or authorized the Respondent to use the disputed domain name and that the Respondent has not commonly been known by that name. The Complainant denies that the Respondent has made preparations to use the disputed domain name in connection with any bona fide offering of goods or services or that it has made legitimate noncommercial or fair use of the name. The Complainant submits that the Respondent’s use of the disputed domain name for a counterfeit website cannot give rise to rights or legitimate interests.

The Complainant submits that the disputed domain name was registered and has been used in bad faith. The Complainant contends that the Respondent must have known of the Complainant and its trademark ETS because it has used the disputed domain name for the purpose of impersonating the Complainant’s website. The Complainant further submits that by impersonating the Complainant’s website and misusing copyright materials from that website the Respondent has attempted to pass itself off as the Complainant for commercial gain.

The Complainant seeks a transfer of the disputed domain name.

B. Respondent

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

6. Discussion and Findings

In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:

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

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) that the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has established that it is the owner of registered trademark rights in the mark ETS. The Panel finds that the disputed domain name is identical to the Complainant’s trademark but for the addition of the number “2”, which is not effective to distinguish the disputed domain name from the Complainant’s mark. In the circumstances, the Panel finds that that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

B. Rights or Legitimate Interests

In the view of the Panel, the Complainant’s submissions referred to above give rise to a prima facie case for the Respondent to answer that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not participated in this administrative proceeding and has not provided any explanation for the registration or use of the disputed domain name, whether in accordance with any of the criteria set out in paragraph 4(c) of the Policy or otherwise. Furthermore, the Complainant has submitted evidence, which the Respondent has not contradicted, that the Respondent has used the disputed domain name for the purposes of a website which impersonates the Complainant’s own official website. Such use would not give rise to any rights or legitimate interests and, having no other evidence of any rights or legitimate interests on the Respondent’s part, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

Having regard to the Respondent’s use of the disputed domain name and the lack of any explanation from the Respondent, the Panel infers that the Respondent registered the disputed domain name in the knowledge of the Complainant’s trademark ETS and with the intention of taking unfair advantage of that trademark. Furthermore, the Panel accepts the Complainant’s evidence that the Respondent has used the disputed domain name for the purpose of a website which impersonates the Complainant’s official website. The Panel therefore finds that, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of that website (paragraph 4(b)(iv) of the Policy). The Panel concludes in the circumstances that the disputed domain name has been registered and is being used in bad faith.

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 <2ets.org> be transferred to the Complainant.

Steven A. Maier
Sole Panelist
Date: October 27, 2017