Wells Fargo & Company v. Charlotte Allison
Claim Number: FA1511001646468
Complainant is Wells Fargo & Company (“Complainant”), represented by Felicia J. Boyd of Barnes & Thornburg LLP, Minnesota, USA. Respondent is Charlotte Allison (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <welilsfargo.com> ('the Domain Name') , registered with Wild West Domains, LLC.
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.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 11, 2015; the Forum received payment on November 12, 2015.
On November 11, 2015, Wild West Domains, LLC confirmed by e-mail to the Forum that the <welilsfargo.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, LLC 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 November 12, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 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@welilsfargo.com. Also on November 12, 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 December 7, 2015 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal 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 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.
A. Complainant
Complainant's contentions can be summarised as follows:
The Complainant is a financial service company which is the owner of the WELLS FARGO registered trade mark across the world including the USA for financial services having provided goods and services under that mark since 1852. It also has the domain name www.wellsfargo.com. The WELLS FARGO mark is famous.
The Domain Name is confusingly similar to the famous WELLS FARGO mark and the Complainant's domain name wellsfargo.com.
It is a misspelling of the WELLS FARGO mark merely adding the letters 'i' between the letters 'l' in the Domain Name which is a de minimis difference.
Respondent has no trade mark or intellectual property rights in the Domain Name. Respondent is not and has never been a licensee of the Complainant. It is not commonly known by the Domain Name.
Respondent has not made any use of the Domain Name in connection with a bona fide offering of goods and services. In November 2015 the Respondent's web site was reported for phishing activity. The Domain Name directed Internet users to a web site containing a near identical copy of Complainant’s web site at wellsfargo.com displaying Complainant’s word and design trade marks and copyrighted images, holding Respondent out as the Complainant alleging to provide financial services and collecting sensitive information of the unsuspecting public. After the site was disabled the domain name now directs Internet users to a parked web site that is not currently being used for anything. Neither is this a legitimate non-commercial or fair use.
The Domain Name was registered in November 2015 long after the Complainant's mark was internationally famous.
The Domain Name was used and registered in bad faith to attract Internet users by creating a likelihood of confusion with the Complainant’s WELLS FARGO mark for financial gain. The Respondent is seeking to deceive Internet users by providing a web site containing a near identical copy of Complainant’s web site and seeking to fraudulently obtain personal information from Internet users through a phishing scam. Even though the site is currently inactive the only logical conclusion is that the Respondent's likely future use of the Domain Name will not differ from its past bad faith use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is a financial service company which is the owner of the WELLS FARGO registered trade mark across the world including the USA for financial services having provided goods and services under that mark since 1852. It also owns the domain name www.wellsfargo.com. The WELLS FARGO mark is famous.
The Respondent is seeking to deceive Internet users by providing a web site containing a near identical copy of Complainant’s web site and seeking to fraudulently obtain personal information from Internet users through a phishing scam.
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 Domain Name consists of a misspelling of the Complainant’s WELLS FARGO mark registered across the world for, inter alia, financial services with merely an additional letter 'i' and the gtld .com added.
Previous panels have found confusing similarity under Policy ¶ 4(a)(i) where a Respondent's disputed domain name merely added a letter to the Complainant’s mark. See AM Online Inc. v Tercent Commc'ns Corp, FA 93668 (Nat. Arb. Forum Mar 21, 2000) (finding that oicq.net and oicq.com are confusingly similar to the Complainant’s mark ICQ.).
gTLDs are typically irrelevant in the determination of confusing similarity. See Isleworth Land co v Lost IN Space , SA, FA 117330 (Nat. Arb. Forum Sept 27, 2002) ('It is a well-established policy that generic top level domains are irrelevant when conducting a Policy 4(a) (i) analysis.).
The letter 'i' and the gTLD .com do not serve to distinguish the Domain Name from the Complainant's WELLS FARGO trade mark. As such the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.
The Respondent has not filed a Response and does not appear to have any trade marks associated with the name WELLS FARGO. There is no evidence that it is commonly known by this name and it does not have any consent from the Complainant to use this name. It does not appear to have used the Domain Name for any bona fide offering of services of its own.
In fact, on the evidence the Complainant has successfully shown that the Respondent has sought to pass itself off as the Complainant in order to gather information by means of a misleading offering of goods and services. 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 personal information is not a bona fide offering of goods and services nor a legitimate non-commercial or fair use). The act of 'phishing', as such practices are known, does not constitute a bona fide offering of goods and services or a legitimate non-commercial or fair use.
Inactive use, such as that being made of the Domain Name at present, does not establish rights or legitimate interests (See TMP Int'l Inc. v Baker Enters. FA 204112 (Nat Arb. Forum Dec 6, 2003) (The Panel concludes that Respondent’s [failure to make active use ] of the domain name does not establish rights or legitimate interests pursuant to Policy 4 (a) (ii).).
Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
Paragraph 4 (b) of the Policy sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its web site or location or of a product or service on its web site or location.
Reviewing the evidence the Panelist finds that the Respondent has attempted to cause confusion amongst Internet users between the Complainant’s mark and the Domain Name for commercial gain by passing itself off as the Complainant to gather the information of Internet users.
Further, past panels have held that phishing for information for financial information through a disputed domain name indicates bad faith. 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 act fraudulently to acquire financial information of the Complainant’s customers.).
Past panels have also held that where a respondent uses a disputed domain name to intentionally attract Internet users to its fraudulent web site by using the Complainant’s famous marks and likenesses it is registration and use in bad faith See HD Michigan Inc. v Petersons Auto. FA 135608 (Nat Arb Forum Jan 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy 4 (b) (iv) through the Respondent’s registration and user of the infringing domain name to intentionally attract Internet users the Respondent’s fraudulent web site by using the Complainant’s famous marks and likenesses).
As such the Panelist finds that the Complainant has made out its case under para 4 (b)(iv) of the Policy and there is no need to consider Complainant’s additional submissions as to bad faith.
Accordingly, the Panel finds that the Domain Name has been registered and used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <welilsfargo.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 21, 2015
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