Michigan First Credit Union v. Abbas AlHalbi
Claim Number: FA1108001401162
Complainant is Michigan First Credit Union (“Complainant”), represented by Paul R. Fransway of Butzel Long, P.C., Michigan, USA. Respondent is Abbas AlHalbi (“Respondent”), Syria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <michiganfirstcreditunion.com>, registered with Fabulous.com Pty Ltd.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 1, 2011; the National Arbitration Forum received payment on August 1, 2011.
On August 1, 2011, Fabulous.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <michiganfirstcreditunion.com> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd 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 August 2, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 22, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@michiganfirstcreditunion.com. Also on August 2, 2011, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 25, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <michiganfirstcreditunion.com> domain name is identical to Complainant’s MICHIGAN FIRST CREDIT UNION mark.
2. Respondent does not have any rights or legitimate interests in the <michiganfirstcreditunion.com> domain name.
3. Respondent registered and used the <michiganfirstcreditunion.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Michigan First Credit Union, provides financial services through its credit unions under the MICHIGAN FIRST CREDIT UNION mark, and has been doing so since 2001. Complainant presents two trademark registrations with the United States Patent and Trademark Office ("USPTO") for its mark:
1. Reg. No. 2,641,303 filed May 14, 2001; registered October 22, 2002; and
2. Reg. No. 3,511,441 registered October 7, 2008.
Respondent, Abbas AlHalbi, registered the <michiganfirstcreditunion.com> domain name on October 11, 2002. Respondent’s disputed domain name resolves to what appears to be a giveaway website which collects Internet users’ e-mail and shipping addresses in return for a “prize.”
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 presented this Panel with evidence that it owns two trademark registrations with the USPTO for its MICHIGAN FIRST CREDIT UNION mark:
Reg. No. 2,641,303 filed May 14, 2001; registered October 22, 2002
Reg. No. 3,511,441 registered October 7, 2008
The Panel finds that Complainant’s evidence establishes its rights in the presented marks under Policy ¶ 4(a)(i), which date back to Complainant’s original filing date with the USPTO. Further, the Panel notes that it is not relevant that Respondent resides in another country for purposes of a Policy ¶ 4(a)(i) analysis. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant contends that the <michiganfirstcreditunion.com> domain name is identical to Complainant’s MICHIGAN FIRST CREDIT UNION mark. The Panel notes that the domain name contains Complainant’s mark verbatim, with the insignificant changes of omitting the spaces between the terms of the mark and adding the generic top-level domain (“gTLD”) “.com.” Therefore, the Panel finds that the domain name at issue is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not own any rights and legitimate interests in the <michiganfirstcreditunion.com> domain name. Complainant is required to make a prima facie case in support of these allegations. Once Complainant has produced a prima facie case, the burden of proof shifts to Respondent to show that it possesses rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”). The Panel finds that Complainant has produced a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the <michiganfirstcreditunion.com> domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant claims that Respondent is neither commonly known as the <michiganfirstcreditunion.com> domain name nor does Respondent hold itself out as such. The WHOIS database information shows the domain name registrant to be “Abbas AlHalbi.” Without benefit of a Response from Respondent, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); 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 Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant contends that Respondent’s disputed domain name resolves to a website “that features sponsored links for third-parties.” Complainant does not present further arguments as to Respondent’s use. However, Complainant does present the Panel with a screen shot of the resolving website. The Panel notes that the resolving website features text stating, “Congratulations! You Are Today’s Michigan Winner!,” which then offers Internet users one of three “Prizes.” Those prizes include a Wal-Mart gift card valued at $1,000, a Best Buy gift card valued at $1,000, or an Apple Ipad 2. All that is required of Internet users is to input their e-mail address and shipping address for their “prize.” The Panel finds that it is likely that Respondent receives some sort of financial incentive to direct Internet users to such a website. The Panel further finds that such use of a confusingly similar domain name does not constitute 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), as it appears to be nothing more than a phishing scam to acquire Internet users’ personal information. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has presented evidence and arguments that Respondent is using the domain name at issue in a scheme to redirect Internet users to a “prize” giveaway website which asks Internet users for their e-mail address and shipping address in order to collect such a “prize.” Presumably Respondent receives click-through or affiliate fees for such use of the domain name. Therefore, the Panel finds that Respondent registered and is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Corp. v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003) (stating that “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website” in holding that the domain names were registered and used in bad faith pursuant to Policy ¶ 4(b)(iv)); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Further, the Panel noted under Policy ¶ 4(a)(ii), that Respondent’s website appears to operate as a phishing scheme, in which unsuspecting Internet users give out personal information in the hopes of acquiring a “prize.” The Panel notes that such a scheme is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”); see also 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).
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 <michiganfirstcreditunion.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 7, 2011
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