Webster Financial Corporation and Webster Bank, National Association v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2010001916639
Complainant is Webster Financial Corporation and Webster Bank, National Association (“Complainant”), represented by Gail Podolsky of Carlton Fields Jorden Burt, P.A., United States. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <websterrbank.com>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 12, 2020; the Forum received payment on October 12, 2020.
On October 13, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <websterrbank.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 3, 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@websterrbank.com. Also on October 14, 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 6, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a federally-chartered national bank. Complainant has rights in the WEBSTER BANK mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,021,979, registered Nov. 8, 2005). Respondent’s <websterrbank.com> domain name is confusingly similar to Complainant’s mark because it incorporates the WEBSTER BANK mark, with an additional letter “r” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <websterrbank.com> domain name because Respondent is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to display a download link for malicious software.
Respondent registered and uses the <websterrbank.com> domain name in bad faith. Respondent uses the domain name to attract users and spread malware. Also, Respondent engaged in typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in the WEBSTER BANK mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a federally-chartered national bank. Complainant has rights in the WEBSTER BANK mark based upon registration with the USPTO (e.g., Reg. No. 3,021,979, registered Nov. 8, 2005). Respondent’s <websterrbank.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <websterrbank.com> domain name on September 1, 2020.
Respondent does not have rights or legitimate interests in the <websterrbank.com> domain name. Respondent uses the domain name to display a download link for malicious software.
Respondent registered and uses the <websterrbank.com> domain name in bad faith.
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”).
Complainant has rights in the WEBSTER BANK mark under Policy ¶ 4(a)(i) based upon registration with the USPTO. See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
Respondent’s <websterrbank.com> domain name is confusingly similar to Complainant’s WEBSTER BANK mark because it incorporates the mark with an additional letter “r” and the “.com” gTLD.
Respondent does not have rights or legitimate interests in the <websterrbank.com> domain name because Respondent is not commonly known by the disputed domain name. 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 H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). The WHOIS information of record shows “Carolina Rodrigues / Fundacion Comercio Electronico” as the registrant and no other information suggests that Complainant is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the <websterrbank.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Instead, Respondent uses the domain name to display a download link for malicious software. See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”).
Respondent registered and uses the <websterrbank.com> domain name in bad faith because Respondent uses the disputed domain to spread malware. Use of a disputed domain name to distribute malware to users constitutes bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Google, Inc. v. Petrovich, FA 1339345 (Forum Sept. 23, 2010) (finding that disputed domain names which distribute malware to Internet users’ computers demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv)).
Also, Respondent engaged in typosquatting. Typosquatting is independent evidence of bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <websterrbank.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 16, 2020
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