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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Prudential Assurance Company Limited. v. prudencial, Fred Goodman

Case No. D2009-1645

1. The Parties

1.1 The Complainant is The Prudential Assurance Company Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Lovells LLP, France.

1.2 The Respondent is "prudencial, Fred Goodman" of Mersyside, Liverpool, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

2.1 The disputed domain name <prudentialos.com> (the "Domain Name") is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").

3. Procedural History

3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 4, 2009. On December 7, 2009, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 8, 2009, 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").

3.2 In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 29, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on December 30, 2009.

The Center appointed Matthew S. Harris as the sole panelist in this matter on January 13, 2010. 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

4.1 The Complainant is a wholly-owned subsidiary of Prudential plc. The "Prudential" is a financial and insurance products and services provider that is well-known in the United Kingdom and elsewhere. By the end of 2007 it had more than 21 million customers, policyholders and unit holders worldwide. The operating profit of the company before tax that year was £2.5 billion.

4.2 The Complainant is the owner of the following registered trade marks:

(i) United Kingdom Trade Mark No. 2025359 for PRUDENTIAL registered on June 27, 1995 in class 36; and

(ii) Community Trade Mark No. 158600 for PRUDENTIAL registered on December 16, 1999 in classes 35, 36 and 42.

4.3 The Domain Name was registered on August 30, 2009 and came to the Complainant`s attention shortly thereafter. There are various web pages operating from the Domain Name. The first page Internet users will encounter if they type the Domain Name into a browser is a relatively plain unbranded page that invites "customers" to type in their user name and password. However, there are a number of other pages that also operate from the Domain Name.

4.4 These other pages purport to be provided by "Prudential Offshore Services", which claims to be a London based institution which was founded in 1984 and "services more than 50,000 customers in all Europe and more than 70,000 in countries around the world". However, no company with that name is registered in the United Kingdom and there also would appear to be no company with that name anywhere else in the world.

4.5 The name "Prudential Offshore Services", and a telephone number (i.e., 020 7050601257) and a name (i.e., "Linda Fowler") that appear on a contact page operating from the Domain Name, have all been listed on a website page operated from the domain name <joewein.de>. The <joewein.de> website provides details of known names and telephone numbers used in the furtherance of "419" scams.

4.6 The name "John W Mark" also appears on the contact page of the website operating from the Domain Name. This is a name that has been used in various emails that have been sent for the purposes of soliciting the transfer of monies. For example, in June 2009 "Mr. Mark" sent an email purportedly from "Prudential Services" with a view to inducing someone to open an "Offshore Global Business Account". In particular, the email contained the following statements:

"We have the main package, which provides all the essentials required to set-up an Offshore Account ...

- Philosophical differences with your revenue authorities?

Tired of the same old stuff – want to break free and see the world?

- Increasing taxation and litigation have made it literally impossible for today`s entrepreneurs to conduct their business in complete privacy, sheltered and unencumbered, tax-free and litigation proof. Just ask yourself. Why would you work 15 hours a day at your own business when your government takes OVER 50% of your profits away from you "for the good of all", and some money hungry vampires sue you to get the other half.

Don`t despair, there`s a light at the end of the tunnel: Global Offshore Business Package! What Does The Package Include? (Internet Banking, Distance operation via phone and Debit Card. ...

REQUIREMENT FOR OFFSHORE GLOBAL BUSINESS ACCOUNT

1) Photocopy of International Passport

2) Proof of Address for the last three months, utility bills will be accepted.

3) £5,500 GBP activation fee, which will be credited into your offshore business account, this fund will be available to spend after your account has been activated

4) Next of Kin name and full address

You pay the Activation fee directly to the payment details we will provide to you upon request. We accept, Western Union Money Transfers and Bank-to-Bank Wire Transfers, for payment of our services. ...

Yours Sincerely,

Mr. John W.Mark

Account Manager.

Switch Boards

Tel:+442070601257 Extension: 01

Fax:+442070601258

Email: john@prudentialserv.co.uk"

4.7 The domain names <prudentialserv.co.uk> and <prudentialserv.com> have in the past also been used to point to a website taking the same form as that appearing from the Domain Name. The domain names <prudentialserv.co.uk> and <prudentialserv.com> were each the subject of separate Nominet and WIPO proceedings commenced by the Complainant (i.e., The Prudential Assurance Company Limited v. Mrs D A Cripps, DRS Case No. 07470 and The Prudential Assurance Company Limited v. Domain Place, domainplace, WIPO Case No. D2009-1014).

4.8 "Fred Goodman", who is listed as the registrant of the Domain Name, does not appear to be the real name of any person. The address given for Mr. Goodman in the WhoIs details for the Domain Name (i.e., 47 Ashside Drive Mersyside [sic] Liverpool MS76TG) does not exist.

4.9 As at the date of this decision a website displaying the web pages described continues to operate from the Domain Name.

5. Parties` Contentions

A. Complainant

5.1 The Complainant contends that the Domain Name is confusingly similar to its trade marks.

5.2 On the issue of rights or legitimate interests it refers to previous cases under the UDRP which state then when a complainant has made a prima facie showing that the registrant does not have rights or legitimate interests in a domain name, then the evidentiary burden passes to the respondent.

5.3 It states that searches of the trade mark registers of numerous jurisdictions show that the Respondent has no trade mark rights in the name Prudential. It states that the Respondent has never been authorised to use the Prudential name. It further contends that the facts (already described in this decision) are such that the Domain Name has been used for the purposes of a website used for the furtherance of fraudulent activity. It, therefore, claims that there has been no use by the Respondent that falls within the scope of paragraph 4(c) of the Policy.

5.4 Similarly, the Complainant contends that the use of the Domain Name falls within the scope of the example of bad faith use provided by paragraph 4(b)(iv) of the Policy. In particular, it alleges that the "it is highly likely that the Domain Name is being used to obtain usernames and passwords or mislead customers of the group to which the Complainant belongs and to confuse recipients of ‘419` emails into believing that the website at the Domain Name is some way linked to the Complainant".

5.5 The Complainant also relies upon the provision of false contact details in the WhoIs details for the Domain Name, which is also said to indicate bad faith.

B. Respondent

5.6 The Respondent did not reply to the Complainant`s contentions.

6. Discussion and Findings

6.1 There are no exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.

6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in paragraph 4(a) of the Policy. Namely the Complainant must prove that:

(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and

(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and

(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).

6.3 However, under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall "draw such inferences therefrom as it considers appropriate".

A. Identical or Confusingly Similar

6.4 The Panel accepts that the Domain Name can only sensibly be understood as the word "Prudential" combined with the letters "os" and the ".com" TLD. In the circumstances the Domain Name is clearly confusingly similar (within the meaning of that term under the Policy) to the Complainant`s two registered trade marks. In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests and Registered and Used in Bad Faith

6.5 This is a case where it is convenient to consider the issues of rights or legitimate interests and bad faith together.

6.6 The Complainant`s evidence in this case that the Domain Name is being used for the purposes of the furtherance of some form of fraudulent activity is compelling. The Panel accepts that the Domain Name is being used in some manner or other to impersonate the Complainant or some other company in the Complainant`s group with a view to obtaining some form of illicit gain. The nature of the website operating from the Domain Name, the provision of false contact details, and the contents of the email sent by Mr. Mark, are all consistent with a website that is being used either to further some advance fee fraud and/or is being used to "phish" for the account details or passwords of Internet users.

6.7 The owners of the Domain Name and the website operating from the Domain Name seem to be linked with, and are possibly the same as, people that previously used the <prudentialserv.co.uk> and <prudentialserv.com> domain names. Panels and experts in ADR proceedings in relation to those domain names have similarly concluded that they were being used for fraudulent purposes (see for example the comments of the expert at the bottom of page 5 of the decision in DRS No. 07470, supra).

6.8 The Complainant contends that if it can make a prima facie showing that the registrant does not have rights or legitimate interests in respect of the Domain Name then the evidentiary burden shifts to the Respondent. There are indeed many cases decided under the Policy which make statement to this effect. However, this is not a case that needs to be decided on the basis of the shifting of an evidential burden. It is quite clear how the Domain Name is being used. It is equally clear that the use of a Domain Name to impersonate another for the purpose of furthering fraudulent activity does not provide a right or legitimate interest under the Policy. The Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.

6.9 Similarly the registration and use of the Domain Name in the manner described also constitutes a clear cut example of registration and use in bad faith. The Complainant contends that the Respondent`s activities fall within the scope of paragraph 4(b)(iv) of the Policy. This is probably right, but the bad faith in this case is more fundamental than this particular example of bad faith use in the Policy. The Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy

7. Decision

7.1 For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <prudentialos.com> be transferred to the Complainant.

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Matthew S. Harris
Sole Panelist

Dated: January 14, 2010