national arbitration forum

 

DECISION

 

Wells Fargo & Company v. Open Water Enterprises Limited c/o Louise S

Claim Number: FA0711001115632

 

PARTIES

 

Complainant is Wells Fargo & Company (“Complainant”), represented by Ryan M. Kaatz, of Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402.  Respondent is Open Water Enterprises Limited c/o Louise S (“Respondent”), Anse Intendance, AA, Mahe 1111 Seychelles.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

 

The domain names at issue are <welisfargo.com>, registered with Domaindoorman, LLC, and <wellsfargoc.com>, <wellsfargofinancil.com> and <wellsforgofinancial.com>, registered with Enom, Inc.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on November 29, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 3, 2007.

 

On November 30, 2007, Domaindoorman, LLC confirmed by e-mail to the National Arbitration Forum that the <welisfargo.com> domain name is registered with Domaindoorman, LLC, and that Respondent is the current registrant of the name.  On December 7, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <wellsfargoc.com>, <wellsfargofinancil.com> and <wellsforgofinancial.com> domain names are registered with Enom, Inc., and that Respondent is the current registrant of the names.  Domaindoorman, LLC and Enom, Inc. have verified that Respondent is bound by the Domaindoorman, LLC and Enom, Inc. registration agreements 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 December 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 8, 2008 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@welisfargo.com, postmaster@wellsfargoc.com, postmaster@wellsfargofinancil.com and postmaster@wellsforgofinancial.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On January 16, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <welisfargo.com>, <wellsfargoc.com>, <wellsfargofinancil.com> and <wellsforgofinancial.com> domain names are confusingly similar to Complainant’s WELLS FARGO mark.

 

2.      Respondent does not have any rights or legitimate interests in the <welisfargo.com>, <wellsfargoc.com>, <wellsfargofinancil.com> and <wellsforgofinancial.com> domain names.

 

3.      Respondent registered and used the <welisfargo.com>, <wellsfargoc.com>, <wellsfargofinancil.com> and <wellsforgofinancial.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, Wells Fargo & Company, is a diversified financial services company that serves over 27 million customers at over 6,000 locations.  Since 1852 Complainant has operated under the WELLS FARGO mark (Reg. No. 743,913 issued October 27, 1964), which was registered with the United States Patent and Trademark Office (“USPTO”).  Complainant has also owned and operated the <wellsfargo.com> domain name in connection with its business since 1994.

 

Respondent registered the following domain names on their respective dates: <welisfargo.com> (November 25, 2003), <wellsfargoc.com> (May 30, 2005), <wellsfargofinancil.com> (January 18, 2005) and <wellsforgofinancial.com> (April 11, 2005).  Respondent is currently using the disputed domain names to resolve to various websites that feature links to Complainant’s competitors.

 

DISCUSSION

 

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.


 

Identical and/or Confusingly Similar

 

Complainant has established sufficient rights in the WELLS FARGO mark through registration of the mark with the USPTO pursuant to Policy ¶ 4(a)(i).  See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also 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.”).

 

The Panel finds that Respondent’s <welisfargo.com>, <wellsfargoc.com>, <wellsfargofinancil.com> and <wellsforgofinancial.com> domain names are confusingly similar to Complainant’s WELLS FARGO mark pursuant to Policy ¶ 4(a)(i) despite the addition of the generic top level domain “.com,” the minor misspellings of Complainant’s mark, and the addition of the various misspelled forms of the generic term “financial.”  See Nevada State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark); State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark); Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain names.  Once Complainant has established a prima facie case supporting its allegations, as it has in this case, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).   

 

Respondent’s failure to respond to the Complaint allows the Panel to conclude that Respondent lacks rights and legitimate interests in the disputed domain names.  See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).  However, the Panel will examine all evidence in the record to determine if Respondent does have rights or legitimate interests pursuant to Policy ¶ 4(c).

 

Respondent is using the disputed domain names to resolve to various websites that feature links to Complainant’s competitors.  Respondent presumably receives referral fees from advertisers listed on Respondent’s websites.  The Panel therefore finds that such use does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name); see also Compaq Info. Techs. Group v Jones, FA 99091 (Nat. Arb. Forum Oct. 4, 2001) (finding that the respondent had no rights or legitimate interests in a domain name that it used to redirect Internet users to a commercial website as part of that website’s affiliate program, where the resultant website contained banner ads as well as various links to offers for free merchandise, including merchandise from the complainant's competitor).

 

Respondent offers no evidence in the record, including the WHOIS domain name registration information, to conclude that it is commonly known by the disputed domain names.  Thus, the Panel finds that Respondent lacks rights and legitimates interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii).  See America W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).

 

Complainant has asserted that Respondent engaged in typosquatting by registering the instant disputed domain names.  Typosquatting occurs when a domain name is registered with the intent of diverting Internet users by way of common typing errors to a different website.  Here, Respondent simply misspelled various aspects of Complainant’s WELLS FARGO mark, or generic terms added thereto.  The Panel therefore finds that Respondent’s use of typosquatting is itself evidence that Respondent lacks rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).  See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent’s disputed domain names resolve to websites that feature links to Complainant’s competitors.  The Panel finds that such use constitutes bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(iii), as it is intended primarily to disrupt Complainant’s business.  See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites). 

 

Respondent’s disputed domain names resolve to websites that feature links to Complainant’s competitors.  Such use creates a likelihood of confusion regarding Complainant’s mark as to the source, affiliation, and sponsorship of the disputed domain names that resolve to the corresponding websites.  Internet users seeking Complainant would likely find Respondent’s websites due to common typographical errors and thus be confronted with links to Complainant’s competitors.  The Panel finds that Respondent’s registration of the disputed domain names constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness). 

 

The Panel finds that Respondent’s engagement in typosquatting constitutes evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <welisfargo.com>, <wellsfargoc.com>, <wellsfargofinancil.com>, <wellsforgofinancial.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Bruce E. Meyerson, Panelist

Dated:  January 29, 2008

 

 

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