Paymentus Corporation v. Luke Robinson / Boomwise
Claim Number: FA2112001978109
Complainant is Paymentus Corporation (“Complainant”), represented by Stephen M. Vaughn of Morris, Manning & Martin, LLP, Georgia, USA. Respondent is Luke Robinson / Boomwise (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <paymentius.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2021; the Forum received payment on December 22, 2021.
On December 28, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <paymentius.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 January 4, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 24, 2022 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@paymentius.com. Also on January 4, 2022, 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 January 28, 2022, 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, Paymentus Corporation, offers electronic bill presentment and payment services.
Complainant asserts rights in the PAYMENTUS mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <paymentius.com> domain name is confusingly similar to Complainant’s mark because it contains the PAYMENTUS mark in its entirety, merely adding the letter “i” and the generic top-level domain (“gTLD”) “.com” to form the at-issue domain name.
Respondent does not have rights or legitimate interests in the <paymentius.com> domain name. Respondent is not licensed or authorized to use Complainant’s PAYMENTUS mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the domain name’s resolving webpage is inactive.
Respondent registered and uses the <paymentius.com> domain name in bad faith. Respondent registered and uses the domain name to employ in a form of typosquatting. Additionally, the at-issue domain name does not address an active webpage. Respondent acted with knowledge of Complainant’s rights in the PAYMENTUS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the PAYMENTUS mark.
Respondent registered the at-issue domain name after Complainant acquired rights in PAYMENTUS.
Complainant’s has not authorized Respondent to use Complainant’s trademark.
Respondent holds the at-issue domain name passively.
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 ownership of a USPTO registration for the PAYMENTUS trademark, demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <paymentius.com> domain name contains Complainant’s PAYMENTUS misspelled by inserting an “i” into the trademark, with all followed by the top-level domain name, “.com.” The differences between Complainant’s trademark and Respondent’s domain name are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <paymentius.com> domain name is confusingly similar to Complainant’s PAYMENTUS trademark under Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’).
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).
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 legitimate interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name indicates “Luke Robinson” as the domain name’s registrant and there is no evidence before the Panel that otherwise indicates Respondent is commonly known by the <paymentius.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). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Browsing to <paymentius.com> returns a parking page with no substantive content. Respondent’s passive holding of the at-issue domain name thus shows 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 Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”).
Given the forgoing, Complainant conclusively demonstrates Respondent’s lack of rights and lack of interests in the <paymentius.com> domain name.
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and legitimate interests, Respondent fails to make active use of the domain name as the domain name addresses a parking page lacking substantive content. Respondent’s passive holding of the domain name shows Respondent’s bad faith registration and use of the domain name per Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Next, Respondent had actual knowledge of Complainant’s rights in PAYMENTUS mark when it registered <paymentius.com> as a domain name. Respondent’s prior knowledge of Complainant’s trademark is evident from the notoriety of Complainant’s trademark and Respondent’s overt misspelling of PAYMENTUS in the at-issue domain name. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”).
Moreover, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the malformed string in a domain name hoping that internet users will accidently type such string when searching for products or services associated with the target trademark, or will read the misspelled trademark laden domain name and confuse it with its target trademark. Although misspelled, Complainant’s PAYMENTUS trademark is nevertheless clearly recognizable when reading Respondent’s <paymentius.com> domain name. At a glance, Respondent’s domain name passes for Complainant’s proper domain name <paymentus.com>. Further, the common mechanical typing error of hitting a key adjacent to an intended key may result in internet users typing a superfluous “i” when intending to type the “u” in <paymentus.com>and thereby inadvertently render Respondent’s <paymentius.com> domain name. Notably, Respondent’s intentional misspelling of PAYMENTUS in its confusingly similar <paymentius.com> domain name is indicative of Respondent’s desire to use the domain name to inappropriately exploit Complainant’s trademark. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also, Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <paymentius.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 31, 2022
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