The Clearing House Payments Company L.L.C. v. FRIDAY OMAGA
Claim Number: FA2107001953832
Complainant is The Clearing House Payments Company L.L.C. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is FRIDAY OMAGA (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clearinghousegroup.org>, registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 2, 2021; the Forum received payment on July 2, 2021.
On July 6, 2021, Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA confirmed by e-mail to the Forum that the <clearinghousegroup.org> domain name is registered with Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA and that Respondent is the current registrant of the name. Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA has verified that Respondent is bound by the Ascio Technologies, Inc. Danmark - Filial af Ascio technologies, Inc. USA 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 July 9, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 29, 2021 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@clearinghousegroup.org. Also on July 9, 2021, 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. Respondent did however sent emails to the Forum, see below.
On August 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that is the only private-sector automated clearing house (“ACH”) and wire operator in the United States, clearing and settling nearly $2 trillion in U.S. dollar payments each day, representing half of all commercial ACH and wire volume. Since its founding in 1853, Complainant has delivered safe and reliable payments systems, facilitated bank-led payments innovation, and provided thought leadership on strategic payments issues. As the country’s oldest banking trade association, Complainant also provides informed advocacy and thought leadership on critical payments-related issues facing financial institutions today. Complainant has rights in the THE CLEARING HOUSE mark through its registration in the United States in 2012.
Complainant alleges that the disputed domain name is confusingly similar to its THE CLEARING HOUSE mark, only differing by removing the “THE” at the beginning of the mark, removing spaces between the mark, adding the generic term “group” after the mark, and appending the “.org” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor licensee of Complainant’s THE CLEARING HOUSE mark. Respondent also fails to use the disputed domain name for any bona fide offer of goods or services, or for any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass itself off as Complainant and attempt to phish for Internet users’ personal and financial information, and to trick consumers into reaching out to Respondent to purchase or use Complainant’s services.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempted to pass itself off as Complainant to confuse Internet users and attract them for commercial gain. Additionally, the disputed domain also resolved to a website containing malicious software meant to phish for users’ personal and financial information. Furthermore, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the THE CLEARING HOUSE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part [sic]: “This email is concerning the domain name registrant, for clearinghousegroup.org, I also own the domain name clearinghousegroup.com. there are similarities in our service delivery process but there is no way we're have infringed on your business trademark nor have we at any time misled anyone to thinking that we are posing as the Clearing House payment LLC. Our color themes are different, our idea management modules are not the same and we do not provide services to businesses/individuals that are not within our geographical region”. And: “If you want to purchase the domain name from me we can negotiate.” And [sic]: “I will opt for a settlement and if the compliant will be ready to settle with me by paying I am willing to sell my domain name. I already own clearinghousegroup.com and clearinghousegroup.org.. and I'll sell each for $3000.”
Complainant has rights in the mark THE CLEARING HOUSE dating back to 2012 and uses it to provide payment services.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that mimics Complainant’s websites and purports to offer services that compete with those of Complainant. The resolving website reproduces, albeit with a somewhat different color scheme, content from Complainant’s legitimate website, including Complainant’s logo. Respondent offered to sell the disputed domain name for an amount in excess of out-of-pocket costs.
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 disputed domain name differs from Complainant’s THE CLEARING HOUSE mark only by removing “THE” from the beginning of the mark, removing spaces within the mark, adding the generic term “group,” and adding the “.org” gTLD. Previous Panels have held that such changes do not negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See The Pros Closet, Inc. v. Above.com Domain Privacy, FA 1616518 (Forum June 3, 2015) (finding confusing similarity where the <proscloset.com> domain name merely omitted the first term (“the”) from Complainant’s THE PROS CLOSET mark, eliminated spacing between words, and added the “.com” gTLD.); see also 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 a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). Therefore the Panel finds that the <clearinghousegroup.org> domain name is confusingly similar to Complainant’s THE CLEARING HOUSE mark.
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies “FRIDAY OMAGA” as the registrant of the disputed domain name. The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
On the basis of the evidence submitted, the Panel finds that the resolving website mimics Complainant’s legitimate website (albeit with a somewhat different color scheme), providing highly similar to identical information to the corresponding page on Complainant’s site (going so far as to allege that Respondent was founded in 1853); and purports to offer competing services. Respondent’s allegation that it does not provide services to businesses/individuals that are not within its geographic region does not mitigate the consequences of its mimicking Complainant’s website and offering competing services. Past panels have held that using another’s mark to resolve to a website that mimics a complainant’s legitimate website is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The same holds for a resolving website that offers products or services in competition with a Complainant’s business. See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also See 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)”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent uses the disputed domain name to phish for users’ personal information, and that the resolving website embeds malicious code. Complainant does not provide any evidence to support these allegations. Consequently, the Panel finds that Complainant has failed to discharge its duty of proof for these allegations and it will not discuss them further.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant to purport to offer competing services. Such use demonstrates bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See 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.”); see also Asbury Auto Group Inc v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (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 therefore finds bad faith registration and use under Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website reproduces content from Complainant’s legitimate website, including its logo (albeit with a different color scheme). While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Finally, Respondent offered to sell the disputed domain name for an amount in excess of out of pocket costs. This is sufficient to establish bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Dollar Rent A Car Sys., Inc. v. Jongho, FA 95391 (Forum Sept. 11, 2000) (finding that the respondent demonstrated bad faith by registering the domain name with the intent to transfer it to the complainant for $3,000, an amount in excess of its out of pocket costs); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the< gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <clearinghousegroup.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 3, 2021
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