Wells Fargo & Company v. Domains By Proxy - VSC Proxy Account / Virtual Services Corporation
Claim Number: FA1411001592280
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Barnes & Thornburg LLP, Minnesota, USA. Respondent is Domains By Proxy - VSC Proxy Account / Virtual Services Corporation (“Respondent”), Switzerland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wellsfargo9.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 26, 2014; the National Arbitration Forum received payment on November 28, 2014.
On November 26, 2014, Fabulous.com Pty Ltd confirmed by email to the National Arbitration Forum that the <wellsfargo9.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 December 2, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 22, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@wellsfargo9.com. Also on December 2, 2014, 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 December 29, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is a diversified financial services company that serves more than 27 million customers. Complainant has used WELLS FARGO and related marks for financial and related services since 1852. Complainant’s WELLS FARGO mark is registered in the United States and many other countries, including Switzerland.
Complainant contends that the disputed domain name <wellsfargo9.com> is confusingly similar to its mark. Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name, and that the domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent has no trademark or intellectual property rights in the domain name, has never been a licensee of Complainant, is not commonly known by the domain name, and has never used nor prepared to use the domain name in connection with a bona fide offering of goods or services. Complainant states that the domain name redirects Internet users to third party websites and landing pages featuring advertising links to various bank-related products and services. Complainant states that its mark was internationally famous in 2005, the creation date reflected in the whois information for the disputed domain name, and alleges that the domain name was registered and used to attract Internet users for financial gain by creating a likelihood of confusion with Complainant’s mark, in an effort to deceive Internet users and direct them to services that compete directly with those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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 disputed domain name corresponds to Complainant’s WELLS FARGO mark, with the space omitted and the number “9” and top-level domain “.com” appended. These alterations do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., StubHub Inc., eBay Inc. v. Chen Sizhu c/o Dynadot Privacy, liwei li, D2013-0356 (WIPO June 6, 2013) (finding <stubhub9.com> confusingly similar to STUBHUB); Wells Fargo & Co. v. Seventh Summit Ventures, FA 155463 (Nat. Arb. Forum June 10, 2003) (finding <wellsfargoo.com> confusingly similar to WELLS FARGO). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization, and apparently its sole apparent use has been in connection with websites designed to exploit confusion with Complainant’s mark and redirect Internet users to competing third-party services, presumably for financial gain. See Wells Fargo & Co., supra (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service
on [Respondent’s] web site or location.”
Respondent’s use of the disputed domain name to promote competing goods and services falls squarely within this provision of the Policy. In the absence of evidence to the contrary, the Panel infers that the domain name was registered for this bad faith use. The Panel therefore finds that Complainant has sustained its burden of proving that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wellsfargo9.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 2, 2015
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