Stripe, Inc. v. Julien Bouef / Stripe
Claim Number: FA2109001966753
Complainant is Stripe, Inc. (“Complainant”), represented by Paul D. McGrady, Jr. of Taft Stettinius & Hollister LLP, Illinois, USA. Respondent is Julien Bouef / Stripe (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <stripe-highrisk-merchant.us>, registered with NameCheap, Inc..
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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2021; the Forum received payment on September 28, 2021.
On September 28, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <stripe-highrisk-merchant.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On October 6, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 26, 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@stripe-highrisk-merchant.us. Also on October 6, 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.
On November 1, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, Esq. 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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, Stripe Inc., is a technology company that builds economic infrastructure for the Internet, including software offering the ability for businesses to accept payments and manage their businesses online. Complainant has rights in the trademark STRIPE based upon its use in commerce since 2011 and registration of the mark with the United States Patent and Trademark Office (“USPTO”) in 2013. The <stripe-highrisk-merchant.us> domain name, registered on March 8, 2021, is confusingly similar to the STRIPE mark as it consists of the mark in its entirety, with the addition of the generic and industry-relevant terms “high risk” and “merchant,” as well as the “.us” ccTLD.
Respondent has no rights or legitimate interests in the <stripe-highrisk-merchant.us> domain name. Complainant did not license, permit, or authorize Respondent to use the STRIPE mark and Respondent is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services via, nor is it making a legitimate noncommercial or fair use thereof because the disputed domain automatically redirects users to a page on Complainant’s own website. Further, the disputed domain name has associated mail exchange (MX) records indicating that Respondent may be sending, or planning to send, spam or phishing emails using the domain name.
Respondent registered or uses the <stripe-highrisk-merchant.us> domain name in bad faith. The disputed domain auto-redirects users to a page at Complainant’s own www.stripe.com webpage and the existence of MX records indicates that Respondent has used, or at least made preparations to use the domain name for spam, phishing, or some other improper activity. Additionally, based on the use to which Respondent has put the disputed domain name and the fact that it copied certain of Complainant’s own information in the WHOIS record, Respondent had actual knowledge of Complainant’s rights in the STRIPE mark when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 and evidence 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 and supported 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 asserts rights in the word STRIPE based upon registration as a trademark with the USPTO. Registration with a national authority such as the USPTO can demonstrate rights in a trademark per Policy ¶ 4(a)(i). See State Farm Mutual Automobile Insurance Company v. shi lei, FA 1967501 (Forum Nov 1, 2021) (“Registration of a mark with the USPTO is sufficient to establish rights in the mark.”). Complainant provides copies of two of its USPTO registration certificates claiming the STRIPE mark. The Panel therefore finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Next, Complainant argues that the <stripe-highrisk-merchant.us> domain name is confusingly similar to the STRIPE mark as the domain name consists of the mark in its entirety, with the addition of the generic terms “high risk” and “merchant,” as well as the “.us” ccTLD. Under Policy ¶ 4(a)(i), the addition of generic or descriptive terms and a ccTLD to a fully incorporated mark is often unsuccessful in overcoming confusing similarity between a domain name and a mark, particularly where the mark is the first element of the domain name’s letter string and the generic words are related to a complainant’s field of business. See The Toronto-Dominion Bank v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1963337 (Forum Oct. 29, 2021) (one of the disputed domain names, <tdcreditcardserviceslogin.com>, uses the asserted TD mark followed by the terms “credit” and “login”); see also Allied Bldg. Prods. Corp. v. Henkel, FA 827652 (Forum Dec. 11, 2006) (holding that “it is well established that the top-level domain, here “.us,” is insignificant with regard to UDRP analysis” when determining confusing similarity). In view of Respondent’s use of the word STRIPE followed by the terms “high risk” and “merchant” which relate to Complainant’s payment software business, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s asserted trademark.
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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
While Policy ¶ 4(c)(i) is not mentioned by Complainant, the Panel finds no evidence that Respondent has rights in any mark similar to the <stripe-highrisk-merchant.us> domain name. Lack of ownership of a trade or service mark identical to a disputed domain name supports a finding that the respondent has no rights and legitimate interests in the domain name under Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). No information of record suggests that Respondent has rights in any mark related to the disputed domain name. Therefore, the Panel concludes that no evidence has been presented that would support a claim by Respondent under Policy ¶ 4(c)(i).
However, Complainant does argue that Respondent has no rights or legitimate interests in the <stripe-highrisk-merchant.us> domain name under Policy ¶ 4(c)(iii) as Complainant did not license, permit, or authorize Respondent’s use of the STRIPE mark and Respondent is not commonly known by the disputed domain name. Such claims are relevant to the analysis of this sub-paragraph of the Policy. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding that a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted that it did not authorize the respondent to use the mark). Further, although information contained in the WHOIS record may initially suggest that a respondent is commonly known by a disputed domain name, such evidence may be discounted where it appears to be fraudulent and the respondent fails to provide any affirmative evidence in support of its identity. See Google Inc. v. S S / Google International, FA 1625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”) The WHOIS record for the <stripe-highrisk-merchant.us> domain name, as disclosed by the concerned Registrar, identifies the registrant as “Julien Bouef / Stripe”. Complainant notes that the first portion of this Registrant name is a misspelling of the name of one of Complainant’s own employees. Further, the physical address listed in the WHOIS record is actually the address of Complainant’s own offices. Respondent has not filed a Response or made any other submission in this case and so it provides no affirmative evidence in support of the identity stated in the WHOIS record for the disputed domain name. It also offers no evidence to suggest that Respondent is authorized to use the STRIPE mark. In light of the false WHOIS information provided by Respondent to its Registrar and the lack of any permission to use the STRIPE mark, the Panel finds no evidence upon which to conclude that Respondent is commonly known by the disputed domain name per Policy ¶ 4(c)(iii).
Additionally, Complainant argues that Respondent is not making a bona fide offering of goods or services via the <stripe-highrisk-merchant.us> domain name and that it is also not making a legitimate noncommercial or fair use thereof because the disputed domain name automatically redirects users to a page titled “High risk merchant lists” on Complainant’s own www.stripe.com website and Respondent has also configured mail exchange (MX) records for the domain name suggesting that it may be used for spam, phishing, or other illicit emails. Use of a disputed domain to redirect to a complainant’s legitimate website is typically not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) and (iv). See Better Existence with HIV v. AAA, FA 1363660 (Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”). Complainant provides a screenshot of the page of its own webpage to which the disputed domain name resolves. It further provides copies of an MX record for the disputed domain name and it is noted that the WHOIS record reflects a contact email address of “radar@stripe-highrisk-merchant.us.” Although there is no direct evidence provided of spam or phishing activity, such as copies of actual emails, the above-mentioned circumstantial evidence presented by Complainant makes it highly likely that Respondent is undertaking or planning such improper activity. Thus, Complainant has presented a prima facie case which has not been rebutted by Respondent, and the Panel finds, by a preponderance of the presented evidence, that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services and that it does not make a legitimate noncommercial or fair use thereof per Policy ¶¶ 4(c)(ii) or (iv).
Complainant argues that Respondent had actual or constructive knowledge of Complainant’s rights in the STRIPE mark when the <stripe-highrisk-merchant.us> domain name was registered. Actual knowledge of a Complainant’s rights in a mark can provide a foundation upon which to build a case for bad faith under Policy ¶ 4(a)(iii) and may be shown through the entirety of circumstances surrounding registration and use of the disputed domain name. See IntraFi Network LLC v. John Stevens, FA 1964234 (Forum Oct. 18, 2021) (finding bad faith where “Respondent’s actual knowledge is evident from the notoriety of the ASSETPOINT trademark, from Respondent’s incorporation of Complainant’s trademark in the domain along with the suggestive term ‘advisors’ and from Respondent’s use of the domain name to impersonate Complainant and inappropriately capitalize on the ASSETPOINT trademark” (i.e., a website whose content, including the listing of Complainant’s building address, is designed to suggest that Complainant is the website’s sponsor)). While Complainant does not present evidence of the notoriety of its STRIPE mark apart from a copy of its www.stripe.com home page, it does assert that actual knowledge is clear from Respondent’s use of the <stripe-highrisk-merchant.us> domain name to automatically redirect users to Complainant’s website as well as Respondent’s use of a mis-spelled name of one of Complainant’s own employees and Complainant’s own mailing address in the WhoIs information for the disputed domain. Based upon this evidence, the Panel finds the assertion that Respondent registered or used the disputed domain name with prior knowledge of Complainant and its STRIPE mark to be well-founded.
Next, while Complainant has not made assertions that specifically address Policy ¶ 4(b), it is noted that these are only examples of bad faith behavior and such arguments are not required under the Policy so long as Complainant submits evidence that shows bad faith registration or use in some manner that meets the requirements of Policy ¶ 4(a)(iii). See Bloomberg Finance L.P. v. Nikita A Paskhalnyy / Private Person, FA 1638757 (Forum Nov. 5, 2015) (the panel noting that the Policy ¶ 4(b) factors “are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated under the totality of the circumstances”). The Panel will therefore consider Complainant’s assertions and evidence under the general scope of Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered or uses the <stripe-highrisk-merchant.us> domain name in bad faith since the domain name automatically redirects users to a page at Complainant’s own www.stripe.com webpage, it has used certain of Complainant’s information in the WHOIS record, and the existence of MX records indicate that Respondent has made, or made preparations for improper use of the domain name through email. Redirecting users to a complainant’s own legitimate website has been cited to suggest bad faith per Policy ¶ 4(a)(iii). See Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”). Further, when viewed against all of the circumstances of a given case, the configuration of MX records for a disputed domain name may indicate a probability that it will be used in connection with spam, phishing, or other activity that would be considered bad faith use under Policy ¶ 4(a)(iii). See Equifax Inc. v. Whois Privacy, Private by Design, LLC / Damien Surray, D2021-2748 (WIPO Oct. 6, 2021) (“The disputed domain name is also associated with MX records, demonstrating that Respondent has the ability to send from and receive email communications to the disputed domain name. Prior UDRP panels have found the association of MX records with a disputed domain name to be evidence of use in bad faith.”), citing Swiss Re Ltd v. Domain Administrator, Fundacion Privacy Services LTD, D2021-1549 (WIPO July 19, 2021). Complainant provides a screenshot of the “High risk merchant lists” page of its own website to which the disputed domain resolves. It also provides evidence that MX records have been configured by Respondent on the disputed domain, claiming such action suggests preparations to circulate emails, potentially for spam or phishing. Respondent has not participated in this case and so it provides no rebuttal or alternate explanation for its actions. The Panel agrees with Complainant and finds that a preponderance of the evidence in this case – redirection of the <stripe-highrisk-merchant.us> domain name to Complainant’s site, use of Complainant’s information in the WHOIS record, and configuration of MX records for the domain name – indicates a high likelihood of illicit and thus bad faith registration and use of the disputed domain name sufficient to satisfy Policy ¶ 4(a)(iii). For the sake of completeness, the Panel notes that this activity also fits the example of bad faith registration or use noted in Policy ¶ 4(b)(iv) as Respondent appears to be seeking commercial gain, through spam or phishing, by attracting internet users to its online location (i.e., an email address that incorporates the disputed domain name) by creating a likelihood of confusion with the Complainant’s STRIPE mark.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <stripe-highrisk-merchant.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: November 4, 2021
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