FMR LLC v. akpa innocent / jobs9ja
Claim Number: FA2011001919282
Complainant is FMR LLC (“Complainant”), represented by Patrick J. Concannon of Nutter McClennen & Fish LLP, Massachusetts, USA. Respondent is akpa innocent / jobs9ja (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trustedfidelityinvestments.com>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 2, 2020; the Forum received payment on November 2, 2020.
On November 3, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <trustedfidelityinvestments.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 November 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 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@trustedfidelityinvestments.com. Also on November 3, 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 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, FMR LLC, is one of the world’s largest asset managers, holding over $3.5 trillion in assets under management as of August 31, 2020.
Complainant has rights in the FIDELITY INVESTMENTS mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <trustedfidelityinvestments.com> domain name is confusingly similar to Complainant’s FIDELITY INVESTMENTS mark, only adding the generic term “trusted” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <trustedfidelityinvestments.com> domain name as it is not commonly known by the disputed domain name and has not been licensed, authorized, or permitted to use the FIDELITY INVESTMENTS mark. Respondent does not use the at-issue to make a bona fide offer of goods or services, nor for any legitimate noncommercial or fair use. Instead, the domain name resolves to a page displaying “TRUSTED FIDELITY INVESTMENTS” on the banner of the site. Respondent attempts to gain financial benefit by passing itself off as Complainant. Respondent solicits personal information and bitcoin deposits from visitors. These acts disrupt Complainant’s sales activity, misleading consumers away from Complainant’s legitimate websites, <www.fidelity.com> and <www.fidelityinvestments.com>.
Respondent registered and uses the <trustedfidelityinvestments.com> domain name in bad faith. Respondent attempts to attract internet users to its website for financial gain by creating a likelihood of confusion in visitors by using Complainant’s mark. Respondent takes advantage of Complainant’s business reputation to pass itself off as Complainant and attract web visitors, deriving financial benefit at Complainant’s expense. Additionally, Respondent had actual or constructive knowledge of Complainant’s rights in the FIDELITY INVESTMENTS mark when registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in FIDELITY INVESTMENTS.
Respondent is not affiliated with Complainant and is not authorized to use the FIDELITY INVESTMENTS mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in FIDELITY INVESTMENTS.
Respondent uses the <trustedfidelityinvestments.com> domain name to direct internet users to a website displaying “TRUSTED FIDELITY INVESTMENTS” on its title banner, to collect private data from website visitors, and to defraud such visitors into depositing bitcoins into Respondent’s account.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of FIDELITY INVESTMENTS with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). 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)).
Further, Respondent’s <trustedfidelityinvestments.com> domain name contains Complainant’s entire FIDELITY INVESTMENTS trademark less, its domain name impermissible space, proceeded by the suggestive term “trusted” and with all followed by the generic top-level domain name “.com.” However, the differences between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the domain name from the trademark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <trustedfidelityinvestments.com> domain name is confusingly similar to Complainant’s FIDELITY INVESTMENTS trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing an at-issue domain name from a mark under Policy ¶ 4(a)(i)).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “akpa innocent / jobs9ja” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <trustedfidelityinvestments.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <trustedfidelityinvestments.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the <trustedfidelityinvestments.com> domain name to direct internet traffic likely intended for Complainant to a website with a banner containing Complainant’s trademark. The website appears to trade or invest bitcoins thus creating the illusion that Complainant is sponsoring the website and its activities. Furthermore, Respondent uses the website to solicit internet users to deposit bitcoins to its account. Respondent’s use of the confusingly similar domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Moreover, Respondent is using the at-issue domain name to phish for private financial data of <trustedfidelityinvestments.com> website visitors who mistakenly believe they are dealing with Complainant when they are not. Respondent’s use of the at-issue domain name to phish for private data fails to show that Respondent has made a bona fide offering of goods or services under Policy ¶ 4(c)(i) regarding the at-issue domain name, or a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See United States Postal Service v. Kehinde Okunola / Genuine ICT Centre, FA 1785420 (Forum June 6, 2018) (“Respondent uses the <uspscouriers.com> domain name both to sell services competing with the business of Complainant and to phish for personal identification information from Internet users. Neither of these uses of the domain name constitutes 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) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
Respondent’s <trustedfidelityinvestments.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent uses the confusingly similar at-issue domain name to attempt to gain commercial benefit from the confusion created among internet users between Complainant’s FIDELITY INVESTMENT mark and the <trustedfidelityinvestments.com> domain name. To wit, Respondent exploits the confusingly similar domain name and passes itself off as Complainant in an effort to defraud website visitors into depositing bitcoins to Respondent account. Respondent’s actions demonstrate its bad faith registration and use of the at-issue domain name under Policy ¶ 4(b)(iii) and (iv). See Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudulently acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also, Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). The Panel notes that Respondent’s publication of overtly false contact information on the <trustedfidelityinvestments.com> website is consistent with Respondent’s role as an online scammer.
Finally, Respondent had actual knowledge of Complainant’s rights in the FIDELITY INVESTMENTS mark when it registered <trustedfidelityinvestments.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s FIDELITY INVESTMENTS trademark and from Respondent’s unauthorized use of such trademark in the at-issue domain name and on the <trustedfidelityinvestments.com> website. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trustedfidelityinvestments.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 25, 2020
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