Wells Fargo & Company v. Tangwangzhongtuo Technology Beijing Co.,Ltd / Xinlong Tang
Claim Number: FA1307001507687
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Barnes & Thornburg LLP, Minnesota, USA. Respondent is Tangwangzhongtuo Technology Beijing Co.,Ltd / Xinlong Tang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wellsfqrgo.com> and <wesllsfargo.com>, registered with GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LTD.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 1, 2013; the National Arbitration Forum received payment on July 2, 2013. The Complaint was submitted in English and Chinese.
On July 2, 2013, GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LTD confirmed by e-mail to the National Arbitration Forum that the <wellsfqrgo.com> and <wesllsfargo.com> domain names are registered with GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LTD and that Respondent is the current registrant of the names. GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., LTD has verified that Respondent is bound by the GUANGZHOU MING YANG INFORMATION TECHNOLOGY CO., 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 July 16, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of August 5, 2013 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@wellsfqrgo.com, postmaster@wesllsfargo.com. Also on July 16, 2013, the Chinese language Written Notice of the Complaint, notifying Respondent of the e-mail 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 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <wellsfqrgo.com> and <wesllsfargo.com> domain names are confusingly similar to Complainant’s WELLS FARGO mark.
2. Respondent does not have any rights or legitimate interests in the <wellsfqrgo.com> and <wesllsfargo.com> domain names.
3. Respondent registered and used the <wellsfqrgo.com> and <wesllsfargo.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has registered its WELLS FARGO mark with the United States Patent and Trademark Office ("USPTO"). (Reg. No. 1,131,103 registered with Feb. 19, 1980).
Respondent registered the <wellsfqrgo.com> and <wesllsfargo.com> domain names on March 23, 2006, and uses them to resolve to websites with hyperlinks to Complainant’s competitors in the banking industry.
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."
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 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.”).
The Panel finds that Complainant’s trademark registration with the USPTO for its WELLS FARGO is sufficient to establish Complainant’s right in the mark under Policy ¶ 4(a)(i), regardless of the fact that Respondent is in China. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <wellsfqrgo.com> and <wesllsfargo.com> domain names merely misspell Complainant’s mark, and affix the generic top-level domain (“gTLD”) “.com,” neither of which are relevant to a Policy 4(a)(i) analysis. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004), where the panel held that confusing similarity is amplified when an infringing domain name merely adds a single-character to a complainant’s mark. The Panel finds that the disputed domain names are confusingly similar to Complainant’s WELLS FARGO mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent is not commonly known by the <wellsfqrgo.com> and <wesllsfargo.com> domain names. The WHOIS information for both domain names lists the “Tangwangzhongtuo Technology Beijing Co., Ltd/Xinlong Tang” as the registrant. The Panel finds that the record provides no basis for finding that Respondent is commonly known by either of the disputed domain names under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant argues that Respondent uses the <wellsfqrgo.com> and <wesllsfargo.com> domain names to host generic hyperlinks to bank-related products and services, and that such a use cannot be bona fide. The Panel notes that the disputed domain names resolve to websites offering a variety of services directly under the WELLS FARGO mark, as well as generically phrased hyperlinks to related services such as “Student Loans,” “Personal Banking,” or “Checking Accounts.” In Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), it was found that a respondent could not claim a bona fide offering, or legitimate noncommercial use, by using a confusingly similar domain name to send Internet users to websites that generated commercial benefits for the respondent. Similarly, the Panel finds that Respondent has not made a Policy ¶ 4(c)(i) bona fide offering, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <wellsfqrgo.com> and <wesllsfargo.com> domain names.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent created a likelihood that Internet users will confuse Complainant’s WELLS FARGO mark with the activity conducted under the <wellsfqrgo.com> and <wesllsfargo.com> domain names. The Panel agrees and finds that the use of Complainant’s own mark in the hyperlinks of these websites creates a likelihood that Internet users will associate Complainant with Respondent’s hyperlinks, for Respondent’s commercial gain. This is bad faith under Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Respondent has registered two domain names that are simply misspellings of Complainant’s WELLS FARGO mark. This is a classic case of typosquatting, constituting bad faith under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wellsfqrgo.com> and <wesllsfargo.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 15, 2013
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