Webster Financial Corporation v. lin yanxiao
Claim Number: FA2201001981644
Complainant is Webster Financial Corporation (“Complainant”), represented by Gail Podolsky of Carlton Fields, P.A., Georgia, USA. Respondent is lin yanxiao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hsabankhsa.com>, registered with Dynadot, 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 January 24, 2022; the Forum received payment on January 24, 2022.
On January 25, 2022, Dynadot, LLC confirmed by e-mail to the Forum that the <hsabankhsa.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 January 26, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 15, 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@hsabankhsa.com. Also on January 26, 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 February 18, 2022, 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, Webster Financial Corporation, offers various financial services. Complainant asserts rights in the HSA BANK mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., reg. no. 3,161,483, registered Oct. 24, 2006). Respondent’s <hsabankhsa.com> domain name is confusingly similar to the HSA BANK mark, merely eliminating the space between the two words, adding the term “HSA,” and adding the generic top-level domain (“gTLD”) “.com” to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <hsabankhsa.com> domain name. Respondent is not licensed or authorized to use Complainant’s HSA BANK mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name’s resolving webpage to host links to competing services.
Respondent registered and uses the <hsabankhsa.com> domain name in bad faith. Respondent registered the disputed domain name using a privacy service and had actual or constructive knowledge of Complainant’s rights in the mark. Respondent uses the disputed domain name to host click-through-fees to competing products in order to profit.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Webster Financial Corporation, offers various financial services. Complainant asserts rights in the HSA BANK mark based upon registration with the USPTO (e.g., reg. no. 3,161,483, registered Oct. 24, 2006). Respondent’s <hsabankhsa.com> domain name is confusingly similar to the HSA BANK mark.
Respondent registered the <hsabankhsa.com> domain name on April 4, 2021.
Respondent does not have rights or legitimate interests in the <hsabankhsa.com> domain name. Respondent uses the disputed domain name’s resolving webpage to host links to competing services to profit.
Respondent registered and uses the <hsabankhsa.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 HSA BANK mark under Policy ¶ 4(a)(i) based upon registration with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <hsabankhsa.com> domain name is confusingly similar to the HSA BANK mark, merely eliminating the space between the two words, adding the term “HSA,” and adding the generic top-level domain (“gTLD”) “.com” to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <hsabankhsa.com> domain name because Respondent is not licensed or authorized to use Complainant’s HSA BANK mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the 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)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information for the disputed domain name lists the registrant as “lin yinxiao.” Furthermore, Complainant did not authorize Respondent to use the HSA BANK mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name’s resolving webpage to host links to competing services. Use of a disputed domain name to offer pay-per-click hyperlinks to competing goods or services 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). See McGuireWoods LLP v. Mykhailo Loginov / Loginov Enterprises d.o.o, FA1412001594837 (Forum Jan. 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with Complainant’s legal services is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Respondent registered and uses the <hsabankhsa.com> domain name in bad faith under Policy ¶ 4(b)(iii) because Respondent uses the disputed domain name to host click-through-links to competing products. See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”); see also Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”).
Additionally, Respondent registered and uses the <hsabankhsa.com> domain name in bad faith because Respondent registered the disputed domain name using a privacy service to conceal Respondent’s true identity to host click-through-links to competing products. See Burt’s Bees, Inc. v. Private Registration, D2011-1808 (WIPO Dec. 18, 2011) (“the use of a privacy or identity shield in this case further supports a finding that the Respondent has acted in bad faith. Although privacy shields may be legitimate in some cases, where, as in this case the Disputed Domain Name at issue fully encompasses the Complainant’s reputed mark and has obviously been used to divert Internet users in terms of paragraph 4(b)(iv) of the Policy, then it seems more likely than not that the Respondent is using a privacy shield to mask its true identity in an attempt to facilitate cybersquatting . . . .”). Pursuant to UDRP Policy ¶ 4(a)(ii), the concealment of Respondent’s true identity through the use of a privacy service is indicative of bad faith registration and use of the <hsabankhsa.com> domain name. See Spin Master Ltd. v. DCSTEAM INC., FA0806001210515, p. 6 (Forum Aug. 5, 2008) (“The Panel therefore finds that this concealment of the Respondent’s true identity was indicative of bad faith registration and use of the disputed domain name pursuant to [UDRP] Policy ¶ 4(a)(ii).”).
Finally, Respondent had actual notice of Complainant's rights in the HSA BANK mark prior to registration of the domain name. Therefore, Respondent registered and uses the <hsabankhsa.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006) (where the circumstances indicate that the respondent had actual knowledge of the complainant's mark when it registered the domain name, panels can find bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hsabankhsa.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 7, 2022
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