DECISION

 

Iowa Bankers Association v. Domain Administrator

Claim Number: FA2010001916576

 

PARTIES

Complainant is Iowa Bankers Association (“Complainant”), represented by Matthew Warner-Blankenship of Davis, Brown, Koehn, Shors & Roberts, P.C., United States. Respondent is Domain Administrator (“Respondent”), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <myimbcloan.com>, registered with Above.com Pty Ltd.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on October 12, 2020; the Forum received payment on October 12, 2020.

 

On October 14, 2020, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <myimbcloan.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On October 19, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@myimbcloan.com.  Also on October 19, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.

 

Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.

 

On November 11, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant:

1.    Complainant, Iowa Bankers Association, provides mortgage loans and financial services under the IBMC mark. Complainant has rights in the IBMC mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,560,073, registered on July 1, 2014). See Amend. Compl. Annex A. Respondent’s <myimbcloan.com> domain name is confusingly similar to Complainant’s mark because it simply misspells Complainant’s IBMC mark by switching the letters “B” and “M” to form the disputed domain name.

2.    Respondent does not have rights or legitimate interests in the <myimbcloan.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the IBMC mark in any way. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name to disseminate malware. Furthermore, Respondent’s use of typosquatting is also evidence of a lack of rights in the disputed domain name.

3.    Respondent registered and uses the <myimbcloan.com> domain name in bad faith. Respondent uses the disputed domain name to attract Internet users for commercial gain by confusing users and implying an affiliation with Complainant. Additionally, Respondent uses the disputed domain name to distributed malware.

 

B.   Respondent:

1.    Respondent did not submit a response.

 

FINDINGS

1.    Respondent’s <myimbcloan.com> domain name is confusingly similar to Complainant’s IBMC mark.

2.    Respondent does not have any rights or legitimate interests in the <myimbcloan.com> domain name.

3.    Respondent registered or used the <myimbcloan.com> domain name in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

 

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

 

(1)  the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

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

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).

 

Identical and/or Confusingly Similar

Complainant asserts rights in the IBMC mark based on registration with the USPTO (e.g., Reg. No. 4,560,073, registered on July 1, 2014). See Amend. Compl. Annex A. Registration of a mark with the USPTO is a valid showing of rights in a mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Since Complainant provides evidence of registration of the IBMC mark with the USPTO, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).

 

Complainant argues that Respondent’s <myimbcloan.com> domain name is confusingly similar to Complainant’s mark because it simply misspells Complainant’s IBMC mark by switching the letters “B” and “M.” Under Policy ¶ 4(a)(i), misspelling a mark in a disputed domain name by transposing letters does not negate a finding of confusing similarity between the mark and the disputed domain name. See Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark); see also RingCentral, Inc. v. Aug.ine Rivera, FA 1562126 (Forum July 1, 2014) (“Transposition of letters in [a] trademark does not distinguish the domain name.”). Complainant notes that the disputed domain name is particularly confusing because it resembles Complainant’s own <myibmcloan.com> domain. Thus, the Panel finds that the disputed domain name is confusingly similar to the IBMC mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent does not have rights or legitimate interests in the <myimbcloan.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the IBMC mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name.  Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a mark constitutes further showing that a respondent lacks rights in a mark. See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug, 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Here, the WHOIS information lists “Domain Administrator” as the registrant and no information suggests Complainant has authorized Respondent to use the IBMC mark in any way. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).

 

Additionally, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use and instead uses the domain to distribute malware. The use of a disputed domain name to disseminate malware does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii).”). Complainant provides screenshots showing the disputed domain name redirects to a website that prompts users to install an extension that is known to download malicious software to a user’s device. See Amend. Compl. Annexes B, C, & D. Thus, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

Additionally, Respondent engages in typosquatting which is further evidence that Respondent lacks rights in the <myimbcloan.com> domain name. Under Policy ¶ 4(a)(ii), misspelling a mark is considered typosquatting and is evidence that a respondent lacks rights or legitimate interests in the disputed domain name. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark.  Typosquatting shows a lack of rights or legitimate interests.”). Thus, the Panel agrees with Complainant and finds that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and uses the <myimbcloan.com> domain name in bad faith because Respondent uses the disputed domain name to attract Internet users for commercial gain by confusing users and implying an affiliation with Complainant per Policy ¶ 4(b)(iv), the use of a disputed domain name to suggest a connection or affiliation with a complainant in order to attract users for commercial gain indicated bad faith. See Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks.  Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant contends that Respondent registered the disputed domain name to confuse users and attract them to Respondent’s website where Respondent presumably receives some financial gain from distributing malware to users’ devices. Complainant provides a screenshot of the webpage the disputed domain name redirects to which prompts users to install malicious software. See Amend. Compl. Annexes B, C, & D. Therefore, the Panel finds bad faith under Policy ¶ 4(b)(iv).

 

Additionally, Complainant argues that Respondent’s use of the disputed domain name to disseminate malware is itself evidence of bad faith. Per Policy ¶ 4(a)(iii), the use of a disputed domain name to distribute malware is evidence of bad faith registration and use. See Microsoft Corporation v. ABK / George Owens a/k/a Rohan / Rohan Suha, FA1211001473573 (Forum Jan. 21, 2013) (holding that because the respondent used the disputed domain name to attempt to facilitate the download of malicious software to the computers of the website’s visitors, the respondent had registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii)). Complainant provides evidence showing the webpage the disputed domain name redirects to attempts to install malware on users’ devices. See Amend. Compl. Annexes B, C, & D. Thus, the Panel also finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <myimbcloan.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  November 24, 2020