Global Payments Inc. v. Ekaterina Pontsova
Claim Number: FA0709001081286
Complainant is Global Payments Inc. (“Complainant”), represented by Norm
J. Rich, of Foley & Lardner LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <globalpaymentscorp.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 24, 2007; the National Arbitration Forum received a hard copy of the Complaint on September 24, 2007.
On September 25, 2007, Direct Information Pvt Ltd d/b/a Publicdomainregistry confirmed by e-mail to the National Arbitration Forum that the <globalpaymentscorp.com> domain name is registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry and that Respondent is the current registrant of the name. Direct Information Pvt Ltd d/b/a Publicdomainregistry has verified that Respondent is bound by the Direct Information Pvt Ltd d/b/a Publicdomainregistry registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 4, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 24, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@globalpaymentscorp.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 31, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 cancelled.
A. Complainant makes the following assertions:
1. Respondent’s <globalpaymentscorp.com> domain name is confusingly similar to Complainant’s GLOBAL PAYMENTS mark.
2. Respondent does not have any rights or legitimate interests in the <globalpaymentscorp.com> domain name.
3. Respondent registered and used the <globalpaymentscorp.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Global Payments Inc., is one of the world’s largest payment transaction processors, offering high-speed electronic information networks that process consumer and business credit and debit card payments and money transfers around the globe. Complainant has offered these services under the GLOBAL PAYMENTS mark since 1996 and holds a trademark registration for the GLOBAL PAYMENTS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,793,590 issued December 16, 2003). Complainant also currently operates a website located at the <globalpaymentsinc.com> domain name to promote its financial products and services.
Respondent registered the <globalpaymentscorp.com> domain name on June 19, 2007. Respondent’s disputed domain name resolves to a website that has nearly identical format, layout, background and text to a website that, until recently, had been operated by Complainant’s European offices. Respondent also solicits personal financial information from Internet users who, believing that they are applying to work for Complainant, submit job applications through Respondent’s website.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts its rights in the GLOBAL PAYMENTS mark through its registration of the mark with the USPTO. Federal trademark registrations are widely recognized under the UDRP, and thus the Panel finds that Complainant’s registration of the GLOBAL PAYMENTS mark sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Complainant asserts that the <globalpaymentscorp.com> domain name is confusingly similar
to its GLOBAL PAYMENTS mark, and the Panel agrees. The disputed domain name includes the entire
GLOBAL PAYMENTS mark and merely adds the generic, business-related term “corp”
onto the end of the mark. The disputed
domain name also differs from Complainant’s mark in that it includes the
generic top-level domain (“gTLD”) “.com.”
However, as a top-level domain is a required element of all domain
names, Respondent’s addition of a gTLD is irrelevant for the purposes of Policy
¶ 4(a)(i).
Therefore, the Panel finds that Respondent’s <globalpaymentscorp.com> domain name is confusingly similar
to Complainant’s GLOBAL PAYMENTS mark pursuant to Policy ¶ 4(a)(i). See Arthur
Guinness Son & Co. (
The Panel thus finds that Policy ¶ 4(a)(i)
has been satisfied.
Next, Complainant alleges that Respondent has no rights or legitimate interests in the <globalpaymentscorp.com> domain name. Under Policy ¶ 4(a)(ii), the initial burden lies with Complainant to prove this allegation. Once Complainant makes a prima facie case, however, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. In the present case, the Panel finds that Complainant has established a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent has failed to file an answer to the Complaint in this proceeding. Respondent’s default thus allows the Panel to presume that Respondent lacks rights and legitimate interests in the <globalpaymentscorp.com> domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). However, the Panel will still evaluate all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Respondent is using the <globalpaymentscorp.com> domain name to display a website nearly identical to a previous website operated by Complainant’s European office. The Panel presumes that Respondent profits when it fraudulently obtains financial information from job applicants who believe that they are dealing with Complainant. Respondent is thus attempting to pass itself off as Complainant and the Panel finds that this does not constitute either 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, Complainant lacks rights and legitimate interests in the <globalpaymentscorp.com> domain name. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)).
Moreover, Complainant asserts that Respondent is not commonly known by the <globalpaymentscorp.com> domain name, which indicates a lack of rights and legitimate interests under Policy ¶ 4(c)(ii). Respondent’s WHOIS information indicates that Respondent is “Ekaterina Pontsova,” and there is no other evidence in the record to suggest that Respondent is known by the <globalpaymentscorp.com> domain name. Furthermore, Complainant has not authorized Respondent to use its GLOBAL PAYMENTS mark for any purpose. Thus, the Panel agrees with Complainant’s assertion and finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(a)(i). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Lastly, Complainant asserts that Respondent registered and is using the <globalpaymentscorp.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). As mentioned previously, Respondent is attempting to pass itself off as Complainant at the website that resolves from the disputed domain name, and Respondent likely profits from this website. The Panel therefore finds that Respondent is taking advantage of the likelihood that Internet users will be confused as to the source of the disputed domain name and Complainant’s affiliation with the corresponding website. Pursuant to Policy ¶ 4(b)(iv), such use indicates that Respondent registered and is using the <globalpaymentscorp.com> domain name in bad faith. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Furthermore, the Panel finds that Respondent’s solicitation of personal financial information from Internet users who think they are submitting job applications to Complainant is further evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use).
The Panel thus finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <globalpaymentscorp.com> domain name be CANCELLED.
Honorable Karl V. Fink (Ret.), Panelist
Dated: November 14, 2007
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