Wells Fargo & Company v. [Unknown Holder]
Claim Number: FA1506001622896
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Barnes & Thornburg LLP, Minnesota, USA. Respondent is [Unknown Holder], whereabouts unknown.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <notifywellsfargo.com>, registered with Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 5, 2015; the Forum received payment on June 8, 2015.
On June 8, 2015, Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA confirmed by e-mail to the Forum that the <notifywellsfargo.com> domain name is registered with Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA and that Respondent is the current registrant of the name. Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA has verified that Respondent is bound by the Ascio Technologies, Inc. Danmark – Filial af Ascio technologies, Inc. USA 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 June 9, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 2015 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@notifywellsfargo.com. Also on June 9, 2015, the 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 8, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 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 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.
PRELIMINARY ISSUE: Redaction of Respondent’s Identity
In e-mail correspondence addressed to the National Arbitration Forum, the Respondent identified in the Complaint filed in this proceeding asserts that it is the victim of identity theft and that it is not the actual holder of the domain name which is the subject of the Complaint. The information supplied in that e-mail communication makes the claim of identity theft plausible, and Complainant does not contest this assertion. Accordingly, we find that it is in the interests of justice that the identity of the Respondent named in the Complaint be redacted from this decision to protect the identity of that person. Therefore, the Respondent in this proceeding will be identified only as “[Unknown Holder].” See Policy ¶ 4(j): “[a]ll decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.” See also Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>, FA 362108 (Nat. Arb. Forum Dec. 30, 2004) and Wells Fargo & Co. v. John Doe as Holder of Domain Name <wellsfargossl>, FA 453727 (Nat. Arb. Forum May 19, 2005), in which presiding panels omitted respondents’ personal information from their decisions in order to protect named respondents who claimed to be victims of identity theft from becoming aligned with acts the actual registrants appeared to have sought to impute to those respondents. Further see Nat’l Westminster Bank plc v. [Redacted], FA 1028337 (Nat. Arb. Forum July 25, 2007).
A. Complainant
Complainant is a longstanding prominent financial services company with over 27 million customers, doing business under the name and mark WELLS FARGO.
Complainant holds a registration for the WELLS FARGO service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 779,187, registered October 27, 1964.
Respondent registered the domain name <notifywellsfargo.com> on or about April 10, 2015.
The domain name is confusingly similar to Complainant’s WELLS FARGO mark.
Respondent has not been commonly known by the domain name.
Respondent has no trademark or other property rights in the domain name.
Respondent is not and has never been a licensee of Complainant.
Respondent uses the disputed domain name to distribute phishing emails to elicit personal and financial information from unsuspecting Internet users.
This employment of the domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent has no rights to or legitimate interests in the domain name.
Respondent knew of Complainant and its rights in the WELLS FARGO mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. 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 proceeding on the basis of Complainant's undisputed representations pursuant to ¶¶ 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to ¶ 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the WELLS FARGO service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding, under Policy ¶ 4(a)(i) that a UDRP complainant’s trademark registrations with the USPTO had established its rights in the BLOOMBERG mark).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <notifywellsfargo.com> domain name is confusingly similar to Complainant’s WELLS FARGO service mark. The domain name incorporates the entire mark and merely adds the generic word “notify” and the generic Top Level Domain (“gTLD”) “.com”. These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding a UDRP respondent’s <amextravel.com> domain name confusingly similar to a complainant’s AMEX mark because the addition of a generic or descriptive word to a registered mark does not avoid a finding of confusing similarity under Policy ¶ 4(a)(i)).
See also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding the addition of the generic top-level domain “.com” to the mark of another in creating a domain name insufficient to differentiate a disputed domain name from that mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (finding that a complainant must first make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); 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 has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the allegations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both finding that, where a respondent fails to respond to a UDRP complaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny,
that Respondent has not been commonly known by the <notifywellsfargo.com> domain name, that Respondent has no trademark or other property rights in the domain name, and that Respondent is not and has never been a licensee of Complainant. Moreover, there is reason to believe that the evidence of its identity which Respondent has supplied to the WHOIS record is false. On this basis, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that a respondent was not commonly known by the <coppertown.com> domain name, and so failed to show that it had rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii), where there was no evidence in the record, including the pertinent WHOIS information, suggesting that that respondent was commonly known by the disputed domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <notifywellsfargo.com> domain name to distribute phishing emails to elicit personal and financial information from unsuspecting Internet users. This employment of the domain name is neither a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name which would permit us to find in Respondent rights to or legitimate interests in it under Policy ¶¶ 4(c)(i) or 4(c)(iii). 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 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)).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed <notifywellsfargo.com> domain name to distribute phishing emails is an attempt fraudulently to elicit personal and financial information from internet users. This demonstrates that Respondent has registered and uses the domain name in bad faith. See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding, under Policy ¶ 4(a)(iii), bad faith registration and use where a respondent used the <wellsbankupdate.com> domain name in order fraudulently to acquire the personal and financial information of a UDRP complainant’s Internet customers).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the WELLS FARGO mark when it registered the disputed <notifywellsfargo.com> domain name. This too is proof of Respondent’s bad faith in registering the domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in the UNIVISION mark when it registered the domain name).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the domain name <notifywellsfargo.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 22, 2015
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