EverBank v. ThunkTunk LLC c/o Domain Manager a/k/a
Christopher Bogle a/k/a
Claim Number: FA0907001276171
Complainant is EverBank (“Complainant”), represented by Karen
Koster Burr, of Allen, Dyer, Doppelt, Milbrath &
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wwweverbank.com>, <eevrbank.com>, and <everbamk.com>, registered with Moniker Online Services, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 28, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 21, 2009.
On September 11, 2009, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwweverbank.com>, <eevrbank.com>, and <everbamk.com> domain names are registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc. 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 September 30, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 20, 2009 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 firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 26, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wwweverbank.com>, <eevrbank.com>, and <everbamk.com> domain names are confusingly similar to Complainant’s EVERBANK mark.
2. Respondent does not have any rights or legitimate interests in the <wwweverbank.com>, <eevrbank.com>, and <everbamk.com> domain name.
3. Respondent registered and used the <wwweverbank.com>, <eevrbank.com>, and <everbamk.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Everbank, is a pioneer in the world of Internet banking as it has offered various financial services over the worldwide web since 1999. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the EVERBANK mark (e.g., Reg. No. 2,568,122 issued May 7, 2002).
Respondent registered the <wwweverbank.com> domain name on January 30, 2004, the <eevrbank.com> domain name on August 11, 2008, and the <everbamk.com> domain name on September 1, 2008.
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.
In the instant proceedings, Complainant has alleged that the entities which control the domain name at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Preliminary Issue: Multiple Respondents
The Panel must first consider whether these proceedings have been properly instituted. UDRP ¶ 3(c) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that Respondent is operating under various asserted alleged aliases. Additionally, the National Arbitration Forum’s Supplemental Rule 4(f)(ii) requires a Panel to dismiss the Complaint in relation to the domain names it deems to be insufficiently linked to Respondent.
The WHOIS information for the disputed domain names identify Respondents as “ThunkTunk LLC,” “Christopher Bogle,” and “Bali Breeze, LLC.” However, each of the disputed domain names contain similar variations of Complainant’s EVERBANK mark, each were registered by Moniker Online Services, the resolving websites from the disputed domain names feature the same type of pay-per-click advertisers, and each resolving website has content using similar language and formatting. The Panel finds that the listed aliases are the same person or entity, or entities controlled by the same person or entity, so that the filing of this Complaint is justified and proper pursuant to Supplemental Rule 4(f)(ii). See Yahoo!, Inc. v. Soksripanich & Others., D2000-1461 (WIPO Jan. 29, 2001) (finding multiple aliases to be the same respondent when the administrative contact information of the various subject domain names was the same or quite similar); see also Yahoo! Inc. & GeoCities v. Data Art Corp., D2000-0587 (WIPO Aug. 10, 2000) (decision rendered against multiple aliases where "the addresses used and the Contacts designated [were] inter-linking and identical.").
Complainant owns multiple trademark registrations for the
EVERBANK mark with the USPTO (e.g., Reg. No. 2,568,122 issued May 7,
2002). The Panel finds that Complainant
has established rights in the EVERBANK mark for purposes of Policy ¶ 4(a)(i)
through its trademark registrations with the USPTO. See
Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum
Dec. 21, 2006) (finding that the Complainant’s federal trademark registration
established its rights in the mark under Policy ¶ 4(a)(i)); see also
Complainant argues that
Respondent’s <wwweverbank.com>, <eevrbank.com>,
and <everbamk.com> domain names are confusingly similar to
Complainant’s EVERBANK mark pursuant to Policy ¶ 4(a)(i). Each of Respondent’s disputed domain names
contain a misspelled version of Complainant’s EVERBANK mark and add the generic
top-level domain (“gTLD”) “.com.” The
Panel finds that a disputed domain name that contains a misspelled version of a
complainant’s mark fails to give the disputed domain name a defining
characteristic and instead creates a confusing similarity between the disputed
domain name and the complainant’s mark. See Granarolo S.p.A. v. Dinoia, FA 649854 (Nat. Arb. Forum Apr. 17,
2006) (finding that the <granarolo.com> domain name was confusingly
similar to the complainant’s registered G GRANAROLO mark); see also Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum
Aug. 1, 2000) (finding that the respondent’s domain name
<wwwbankofamerica.com> is confusingly similar to the complainant’s
registered trademark BANK OF
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and legitimate interests in the disputed domain names. If a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that rights and legitimate interests exist pursuant to Policy ¶ 4(a)(ii). In this case, the Panel finds that Complainant has established a prima facie case, the burden is shifted to Respondent, and Respondent has failed to submit a Response in this proceeding. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); 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).
Complainant contends that Respondent is neither commonly known by nor licensed to register the disputed domain names. The Panel finds WHOIS information demonstrates that Respondent is not commonly known by the disputed domain names. Therefore, pursuant to Policy ¶ 4(c)(ii), Respondent lacks rights and legitimate interests in the disputed domain name. See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute); see also Am. 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.”).
Respondent is using the disputed domain names to display links advertising third-party websites in competition with Complainant’s offering of financial services. The Panel infers that Respondent is using the disputed domain names to earn click-through fees, and thus finds that Respondent has not made a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is 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) because the registrant presumably receives compensation for each misdirected Internet user); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
Respondent has engaged in the practice known as “typosquatting.” This occurs when domain names are registered with the intent of targeting Internet users who commit typographical errors. This practice constitutes evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). See 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 the complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”); see also 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’”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the disputed domain names to disrupt the business of Complainant by offering links to competitors offering financial services is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (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); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”).
Lastly, Respondent is using the disputed domain names to intentionally divert
Internet users to the associated websites, which display third-party links to
competing websites. In cases such as this,
the Panel presumes that Respondent is collecting click-through fees and
attempting to profit by creating a likelihood of confusion between
Complainant’s EVERBANK mark and the confusingly similar disputed domain
names. The Panel finds that Respondent’s
use of the disputed domain names is further evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v.
Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the
respondent engaged in bad faith registration and use by using a domain name
that was confusingly similar to the complainant’s mark to offer links to
third-party websites that offered services similar to those offered by the
The Panel has determined that Respondent has engaged in typosquatting. The Panel need only note here that typosquatting is generally considered as sufficient evidence itself of bad faith registration and use under Policy ¶ 4(a)(iii). The Panel so finds in the instant case. 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 Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
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 <wwweverbank.com>, <eevrbank.com>, and <everbamk.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 30, 2009
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