WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CENEGENICS, L.L.C. v. Khalid Baldini
Case No. D2018-2073
1. The Parties
The Complainant is CENEGENICS, L.L.C. of Las Vegas, Nevada, United States of America (“United States”), represented by Theodora Oringher PC, United States.
The Respondent is Khalid Baldini, of Mohammedia, Morocco.
2. The Domain Name and Registrar
The disputed domain name <cenegenicsreview.net> is registered with NameSilo, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2018. On September 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 11, 2018, 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 September 14, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint.
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 27, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 17, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2018.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on October 25, 2018. 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 has not stated its business but as identified by its annexed trademark registrations, it evidently provides goods and services related to matters of ageing and health.
The Complainant holds 14 trademarks for CENEGENICS, standing alone or in combination, registered at the United States Patent and Trademark Office (“USPTO”), of which the following are sufficiently representative:
CENEGENICS, registered at USPTO, registered on February 9, 1999, registration number 2223227, in class 42;
CENEGENICS MEDICAL INSTITUTE, with design, registered at USPTO, registered on May 27, 2008, registration number 3436621, in classes 5, 41, 44;
CENEGENICS ELITE HEALTH, registered at USPTO, registered on December 24, 2013, registration number 4453661, in class 41.
Nothing is known about the Respondent except that he has operated a website headed “Cenegenics Reviews – What Is It?” at the disputed domain name, which was registered on May 20, 2013.
5. Parties’ Contentions
A. Complainant
The Complainant has produced copies of registration documents recording it as the registrant of the trademarks listed above.
The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. A consumer is likely to be confused, mistaken, or deceived as to the source of the content found at the disputed domain name and is likely to assume a connection between the Respondent and the Complainant.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not a licensee of the Complainant and is not authorised to use the Complainant’s trademark in the disputed domain name. There is no evidence of the use of the disputed domain name in connection with a bona fide offering of goods or services. There is no evidence that the Respondent is known by the disputed domain name. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, but is using it to tarnish the Complainant’s trademark.
The Complainant says the Respondent has used the disputed domain name to misdirect traffic to the corresponding website by confusion and by falsely suggesting an affiliation between the Respondent and the Complainant.
The Complainant says the disputed domain name was registered and is being used in bad faith by the Respondent. The Respondent has been served with proof of the Complainant’s ownership of its trademark and has failed to cease and desist usage of the disputed domain name. The Respondent has demanded that the Complainant pay an amount equivalent to the filing fee for this Complaint in return for the disputed domain name.
The Complainant says the Respondent has used the Complainant’s trademark to attract Internet users to the Respondent’s website. Security software such as Cisco Umbrella has found the Respondent’s website to be a source of malicious software including phishing software, and the Complainant alleges that the Respondent’s activity may be with criminal intent. The Complainant’s business is being disrupted.
The Complainant says the true registrant of the disputed domain name has concealed its identity and speaks only through its agent, Khalid Belamdini.
The Complainant requests the transfer of the disputed domain name.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Procedural Matters
The Complaint initially cited a privacy service as the Respondent. After the identification details provided by the registrant were disclosed to the Center by the Registrar, the Complainant was invited to amend the Complaint accordingly and was informed that “the Respondent identity determination is at the Panel’s discretion upon appointment”. The Complainant did not reply. Paragraph 1 of the Rules defines a respondent as “the holder of a domain-name registration against which a complaint is initiated”. Accordingly the Panel deems the registrant, Khalid Belamdini, to be the Respondent.
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:
“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith”.
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
B. Identical or Confusingly Similar
The Panel is satisfied by the evidence produced that the Complainant has the requisite rights in trademarks comprising or containing CENEGENICS for the purposes of paragraph 4(a)(i) of the Policy.
The disputed domain name is <cenegenicsreview.net>, of which the generic Top‑Level Domain (gTLD) designation “.net” may be disregarded in the determination of confusing similarity. The remainder of the disputed domain name is “cenegenicsreview”, which displays prominently the distinctive element CENEGENICS of the Complainant’s trademarks. The additional generic or descriptive word “review” is found not to be distinguishing. The Panel finds the disputed domain name to be confusingly similar to the Complainant’s trademarks and finds for the Complainant under paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
The Complainant has stated a prima facie case to the effect that the Respondent is not a licensee of the Complainant, is not authorised to use the Complainant’s trademark, and has no rights or legitimate interests in respect of the disputed domain name.
Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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”.
The Respondent has not responded to the Complaint or asserted rights or legitimate interests in the disputed domain name under paragraphs 4(c)(i), (ii) or (iii) of the Policy or otherwise, nor in light of the findings below can the Panel envisage any grounds on which the Respondent may be able to demonstrate such rights or legitimate interests.
The Panel finds for the Complainant under paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
The Complainant must prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location”.
The disputed domain name resolves to a website where the first page is headed “Cenegenics Reviews – What Is It?” followed below by “Is it a scam? What is Cenegenics Program Cost?”, then a disclaimer: “Warning : This website Cenegenisreview.net is NOT affiliated with, funded, or in any way associated with Cenegenics”. Most of the website is devoted to purported comments from the public contributors. From the content of the website and the disclaimer it may reasonably be deduced that the Respondent was aware of the Complainant.
The Respondent’s website is evidently intended to attract visitors interested in the Complainant’s products or services, and does so by means of the disputed domain name featuring the Complainant’s trademark. The Respondent has not attempted to justify the website as being for the purpose of bona fide tribute or criticism. Some of the pages name competing products with a price comparison and a “Visit Website” button that would presumably take the visitor to those competitors. The Panel interprets the “Visit Website” buttons as being, more probably than not, links to pay-per-click advertisers from which the Respondent may receive revenue. In the terms of paragraph 4(b)(iv) of the Policy, on the evidence and on the balance of probabilities, the Respondent is found to have intended to attract visitors by confusion of the disputed domain name with the Complainant’s trademark for commercial gain, constituting use in bad faith.
The Complainant has produced a screen capture of a report from Cisco Umbrella, which is a security software system that identifies sources of malicious malware. The report says, “This site is blocked due to a phishing threat”, then names “www.cenegenicsreview.net”. The report continues, “Phishing is a fraudulent attempt to get you to provide personal information under false pretenses. This page has been blocked because it may contain malicious content”. Phishing is an attempt to gain information of value surreptitiously, further justifying a finding of use of the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy, and also a finding of registration in bad faith under paragraph 4(b)(iii) of the Policy.
The Complainant claims that the Respondent offered to sell the disputed domain name to the Complainant for what would amount to USD 1,500, being in excess of registration costs, but has failed to produce evidence of this into the record and accordingly the Panel does not render a decision on the basis of this unsupported assertion.
Nevertheless, on the evidence and on the balance of probabilities the panel finds the disputed domain name to have been registered and used in bad faith in the terms of paragraph 4(a)(iii) 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 <cenegenicsreview.net> be transferred to the Complainant.
Dr. Clive N.A. Trotman
Sole Panelist
Date: November 8, 2018
