Brainetics, LLC v. Alyssa Shen
Claim Number: FA1011001360209
Complainant is Brainetics, LLC (“Complainant”), represented by Matthew K. Organ, Illinois, USA. Respondent is Alyssa Shen (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <braineticsdvds.us>, registered with GoDaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 23, 2010; the Forum received a hard copy of the Complaint on December 6, 2010.
On November 24, 2010, GoDaddy.com, Inc. confirmed by e-mail to the Forum that the <braineticsdvds.us> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 December 7, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 27, 2010 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 28, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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 makes the following assertions:
Trademark/Service Mark Information:
i. Complainant Brainetics, LLC ("Complainant") is a growing company that creates, markets and distributes educational DVDs and other educational materials including workbooks, manuals, playing cards and flashcards, all sold under the trademark BRAINETICS (the "Mark").
ii. Complainant has been using the Mark and various logos in connection with the foregoing products since at least as early as 2007. Given the importance and value of its Mark, Complainant obtained a registration for the Mark with the United States Patent and Trademark Office, U.S. Reg. No. 3,486,052. Complainant's registration is in full force and effect.
iii. The original content on Complainant's DVDs and other educational materials are protected under the Copyright Laws of the United States, 17 U.S.C. § 101, et seq.
iv. Complainant has expended considerable time, money and resources developing, promoting and advertising its Mark through various media in interstate commerce, such that the Mark has met with widespread public approval. As a result of the extensive sales, advertising and promotion of Complainant's products and the Mark, and as a result of Complainant's quality standards, the Mark has earned significant goodwill and public recognition.
v. Complainant promotes and advertises its DVDs and other educational materials on its website located at brainetics.com, commercials and infomercials broadcast throughout the United States and abroad, on direct to consumer broadcast networks such as the Home Shopping Network, and in nationwide print media.
vi. The Mark is a fanciful word-mark which is inherently distinctive and, therefore, strong. That strength has been enhanced by Complainant's extensive advertising and promotion, as well as its widespread sales of DVDs and other educational materials. Complainant has sold hundreds of thousands of its DVDs and other educational materials.
This Complaint is based on the following factual and legal grounds:
a. Confusing Similarity Exists Between Complainant's Mark and Respondent's Domain Name
1. Respondent has registered the domain name braineticsdvds.us (the "Domain Name"). Respondent registered the Domain Name on June 9, 2010 – years after Complainant began using, and obtained a registration for the Mark. Respondent's second-level domain name is confusingly similar to Complainant's Mark because the Domain Name wholly incorporates Complainant's Mark, except that it adds the generic word "dvds." See, e.g., MB Financial Bank, N.A. v. MBBANK, FA0602000644517 (Nat. Arb. Forum Apr. 4, 2006) (finding domain name <mbbank.com> confusingly similar to Complainant's MB Mark, "because the domain name incorporated Complainant's mark in its entirety and adds the generic term 'bank,' which describes Complainant's business" and is "insufficient to negate the confusingly similar aspects of the Domain Name."); Diageo Brands B.V., Diageo North America, Inc. and United Distillers Mfg., Inc. v. iVodka.com a.k.a Alec Bargman, D2004‑0627 (WIPO, Sept. 24, 2004) (finding that adding a word descriptive of the goods offered by complainants is not enough to avoid confusion.); Christie's Inc. v. Tiffany's Jewelry Auction, Inc., D2001-0075 (WIPO, Mar. 6, 2001) (finding domain name <christiesauction.com> confusingly similar to complainant's mark since it merely added the word "auction" used in its generic sense); Caterpillar, Inc. v. Roam the Planet, Ltd., D2000-0275 (WIPO May 26, 2000) (transferring domain name <www.catmachines.com> to Caterpillar, Inc.; finding that the addition of the word "machines" to Caterpillar, Inc.'s trademark "Cat" where the mark was used extensively in connection with machines was confusingly similar); Space Imaging LLC v. Brownell, AF-0298 (eResolution, Sept. 22, 2000) (finding confusing similarity where respondent's domain name combined complainant's mark with a generic term that has an obvious relationship to complainant’s business). Respondent's use of the ".us" top-level domain name does not alleviate any confusion. See, e.g., Orange Glo Int'l, Inc. v. Green, FA0501000404469 (Nat. Arb. Forum Feb. 28, 2005) ("the addition of a generic top-level domain [did] not distinguish the <oxyclean.info> domain name from Complainant's OXICLEAN mark."); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO Jun. 25, 2000) (top-level domain names like ".net" or ".com" do not affect domain names for the purpose of determining whether they are identical or confusingly similar).
2. The confusion that necessarily exists between Respondent's braineticsdvds.us domain name and Complainant's Mark is magnified by the fact that the braineticsdvds.us webpage is a direct copy of Complainant's legitimate website and, upon information and belief, is being used as a "phishing scheme." Compare the screen shot of the braineticsdvds.us webpage, with a screen shot of Complainant's brainetics.com webpage. Any consumer arriving at braineticsdvds.us would naturally be misled into believing that he or she was dealing directly with Complainant. Such consumer would be misled into attempting to order a product from Respondent instead of Complainant, and, significantly, be misled into providing the consumer's contact information and credit card details to Respondent.
b. Respondent Has No Right or Legitimate Interest In The Domain Name
1. Upon information and belief, neither Respondent nor any business operated by Respondent, nor any product offered by Respondent, has been commonly known by the Domain Name. Respondent's use of the Mark on Respondent's webpages is wholly unauthorized. Respondent, therefore, has no legitimate rights in the Domain Name. See Gallup Inc. v. Amish Country Store, FA96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that respondent did not have rights in a domain name where respondent was not known by the mark).
2. Further, Respondent should be considered to have no rights or legitimate interest in the Domain Name because Respondent's registration of the Domain Names infringes Complainant's federally registered Mark. See Slep-Tone Entertainment Corp. v. Dremann, FA2002000093636 (Nat. Arb. Forum Mar. 13, 2000) (finding, based on respondent's infringement of complainant's mark, that respondent had no rights or legitimate interest).
3. Respondent's registration of a Domain Name that is simply Complainant's Mark with a generic word added to it is not fair use. See MB Financial Bank, N.A. v. mbfinancialmortgage.com, FA0501000405073 (Nat. Arb. Forum Mar. 11, 2005) (finding that fair use does not apply where respondent offers competing services using a domain name that simply adds a generic word to the end of complainant's mark).
4. Further, Respondent's use of the Domain Name to mislead consumers into dealing with and providing contact and credit card information to Respondent is not a legitimate or fair use. Anheuser-Busch, Inc. v. Private Whois Service c/o budweiser-usa.com, FA1007001335010 (Nat. Arb. Forum Aug. 16, 2010) ("Respondent's use of the <budweiser-usa.com> domain name as part of a phishing scheme is not evidence of legitimate rights and interests in the <budweiser-usa.com> domain name pursuant to Policy ¶4(a)(ii)."); see also Juno Online Servs., Inc. v. Nelson, FA241972 (Nat. Arb. Forum Mar. 29, 2004) (use of domain name in fraudulent scheme to deceive Internet users into providing credit card and personal information is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use); Capital One Fin. Corp. v. Howel, FA289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that use of domain name to redirect Internet users to website that imitated the complainant's credit application website and attempted to fraudulently acquire personal information from the complainant's clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
c. Respondent's Bad Faith Conduct
1. On or about October 29, 2010, counsel for Complainant sent an email to Respondent demanding that Respondent cease its unauthorized and infringing conduct. As of the date of this filing, Complainant has received no response from Respondent, and thus Respondent has refused, without justification, to take the requisite steps to transfer the Domain Name to Complainant. Respondent's decision to willfully ignore and disregard Complainant's rights is evidence of bad faith registration and use. See Digi Int’l v. DDI Sys., FA124506 (Nat. Arb. Forum Oct. 24, 2002) (finding that "there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively").
2. Respondent's Domain Name should be considered to have been registered and used in bad faith because Respondent failed to discharge its responsibility to select, register and use a domain name that does not infringe the rights of a third-party, namely Complainant, in violation of Paragraph 2 of the usTLD Policy. See Slep-Tone Entertainment Corp. v. Dremann, FA2002000093636 (Nat. Arb. Forum Mar. 13, 2000).
3. Respondent's unauthorized reproduction and display of Complainant's website content originally published at www.brainetics.com is in violation of Complainant's copyrights, including its rights under 17 U.S.C. § 101, et seq., and other international copyright laws.
4. The braineticsdvds.us domain name is being used to imitate Complainant's website and, upon information and belief, is using the braineticsdvds.us domain name in order to mislead consumers into attempting to place orders with Respondent, and provide Respondent with the consumer's contact information and credit card details, which constitutes a bad faith registration and use pursuant to usTLD Policy ¶4(a)(iii). Anheuser-Busch, Inc. v. Private Whois Service c/o budweiser-usa.com, FA1007001335010 (Nat. Arb. Forum Aug. 16, 2010) ("use of the disputed domain name for [a phishing scheme] constitutes bad faith registration and use"); see also Fitness Anywhere, Inc. v. Jose Gomes, FA1007001333903 (Nat. Arb. Forum Aug. 9, 2010) ("Respondent's use of the disputed domain names to attempt to phish for Internet users' personal information constitutes bad faith registration and use under Policy ¶4(a)(iii)."); Hess Corp. v. GR, FA770909 (Nat. Arb. Forum Sept. 19, 2006) (attempt to acquire personal and financial information of Internet users through a confusingly similar domain name demonstrated bad faith registration and use); HOPE worldwide, Ltd. v. Jin, FA320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant's website and was used to fraudulently acquire personal information from the complainant's potential associates); Capital One Fin. Corp. v. Howel, FA289304 (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).
B. Respondent failed to submit a Response in this proceeding.
Complainant, Brainetics, LLC, creates, markets, and distributes educational DVDs and other educational materials including workbooks, manuals, playing cards, and flashcards, all sold under the BRAINETICS mark. Complainant owns a trademark registration for its BRAINETICS mark with the United States Patent and Trademark Office (“USPTO”)
(Reg. No. 3,486,052 issued August 12, 2008).
Respondent, Alyssa Shen, registered the disputed domain name on June 9, 2010. The disputed domain name resolves to a website that imitates Complainant’s official website in an attempt to obtain contact information and credit card information from consumers.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Complainant asserts rights in its BRAINETICS mark based on its registration of the mark with the USPTO (Reg. No. 3,486,052 issued August 12, 2008). The Panel finds Complainant’s registration of the mark with the USPTO is sufficient evidence to establish Complainant’s rights in the mark under Policy ¶4(a)(i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); see also Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to UDRP ¶4(a)(i)). The Panel also finds it is irrelevant whether Complainant registered its BRAINETICS mark in the country where Respondent resides or operates. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the UDRP whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant alleges Respondent’s <braineticsdvds.us> domain name is confusingly similar to Complainant’s BRAINETICS mark. Respondent’s disputed domain name incorporates Complainant’s mark in its entirety and then adds both the descriptive term “dvds,” which describes one of Complainant’s product offerings, and the country-code top-level domain (“ccTLD”) “.us.” The Panel finds the addition of a descriptive word does not distinguish the disputed domain name from Complainant’s mark. See Parfums Christian Dior v. 1 Netpower, Inc., D2000-0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”). The Panel additionally finds that the addition of the ccTLD “.us” is irrelevant when determining confusing similarity as a TLD is a required element of every domain name. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds the elements of Policy ¶4(a)(i) have been met.
Complainant alleges Respondent lacks rights and legitimate interests in the <braineticsdvds.us> domain name. The burden shifts to Respondent to prove it has rights or legitimate interests pursuant to Policy ¶4(a)(ii) after Complainant makes a prima facie case in support of its allegations. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to submit a Response to these proceedings, the Panel may infer Respondent does not have any rights or legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). However, the Panel elects to consider the evidence, in light of the factors contained in Policy ¶4(c), to determine whether Respondent has any rights or legitimate interests in the disputed domain name.
There is no evidence in the record that would support a finding Respondent owns any service marks or trademarks that reflect its <braineticsdvds.us> domain name. Accordingly, the Panel finds Respondent lacks rights and legitimate interests pursuant to Policy ¶4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name); see also Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶4(c)(i)).
Complainant asserts neither Respondent, nor any business operated by Respondent, has been commonly known by the disputed domain name. Complainant further asserts Respondent’s use of Complainant’s BRAINETICS mark is wholly unauthorized. The WHOIS information for the disputed domain name supports Complainant’s assertions as it identifies the registrant of <braineticsdvds.us> as “Alyssa Shen.” The Panel finds Respondent has failed to demonstrate that it is commonly known by the disputed domain and thus, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶4(c)(iii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under UDRP ¶4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s <braineticsdvds.us> domain name resolves to a website that imitates Complainant’s official website. Complainant submitted screenshots of Respondent’s resolving website showing a website nearly identical to Complainant’s own website. Respondent’s resolving website features Complainant’s BRAINETICS mark prominently. The Panel finds Respondent is using the disputed domain name in an attempt to pass itself off as Complainant. The Panel concludes such a use is neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(ii) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iv). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to UDRP ¶4(c)(i), or a legitimate noncommercial or fair use pursuant to UDRP ¶4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to [UDRP] ¶4(c)(i), or a legitimate noncommercial or fair use pursuant to [UDRP] ¶4(c)(iii).”).
Complainant asserts Respondent’s disputed domain name resolves to a website that attempts to solicit orders for Complainant’s products from Internet users, providing Respondent with personal and credit card information in what is commonly known as a phishing scheme. The Panel concludes Respondent’s use of the disputed domain name to phish for Internet users information is further evidence Respondent lacks rights and legitimate interests pursuant to Policy ¶4(a)(ii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds the elements of Policy ¶4(a)(i) have been met.
As established previously, Respondent’s disputed domain name, <braineticsdvds.us>, is confusingly similar to Complainant’s BRAINETICS mark. The Panel finds Respondent registered and is using the confusingly similar disputed domain name to intentionally attract Internet users to its own website for commercial gain, because Respondent is presumably attempting to profit from the credit card and personal information it obtains from Internet users. Thus, the Panel concludes Respondent registered and is using the disputed domain name in bad faith under Policy ¶4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under UDRP ¶4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to UDRP ¶4(b)(iv)).
Complainant asserts, and submits proof in the form of screenshots, Respondent’s resolving website is nearly identical to Complainant’s official website and Respondent’s website prominently features Complainant’s BRAINETICS mark. The Panel finds Respondent’s attempt to pass itself off as Complainant is further evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii). See Target Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”); see also Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds this conduct is that which is prohibited by Paragraph 4(b)(iv) of the [UDRP].”).
Complainant also asserts Respondent’s disputed domain name resolves to a website that phishes for Internet users’ personal and credit card information by purporting to take orders for Complainant’s products. The Panel finds that phishing itself is evidence Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name).
Finally, nothing in the record suggests Respondent qualifies for registration of a usTLD domain name because she appears to have no connection with the United States. This is evidence of bad faith registration and usage, in the absence of an answer.
The Panel finds the elements of Policy ¶4(a)(iii) have been met.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <braineticsdvds.us> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: December 30, 2010
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