Wells Fargo & Company v. Open Water Enterprises Limited c/o Louise S
Claim Number: FA0711001115632
Complainant is Wells Fargo & Company (“Complainant”), represented by Ryan
M. Kaatz, of Faegre & Benson, LLP, 2200
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.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
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
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
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 names be transferred from Respondent to Complainant.
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.
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> (
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 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
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 &
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
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
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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
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
The Panel 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 <welisfargo.com>, <wellsfargoc.com>, <wellsfargofinancil.com>, <wellsforgofinancial.com> domain names be TRANSFERRED from Respondent to Complainant.
Dated: January 29, 2008
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum