Navy Federal Credit Union v. lin yanxiao
Claim Number: FA1602001663282
Complainant is Navy Federal Credit Union (“Complainant”), represented by John Gary Maynard, Virginia, United States. Respondent is lin yanxiao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <navyfedearl.org>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 29, 2016; the Forum received payment on February 29, 2016.
On March 1, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <navyfedearl.org> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 March 1, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 21, 2016 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@navyfedearl.org. Also on March 1, 2016, 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 March 24, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a major financial institution that provides financial services to the military and their families. Complainant uses the NAVY FEDERAL mark in relation to its financial institution to promote its goods and services. Complainant has registered the NAVY FEDERAL mark in the USA, with rights dating back to 2005.
According to Complainant, the disputed domain name is confusingly similar to the NAVY FEDERAL mark as it eliminates the spaces between words, adds the “.org” generic top-level domain (“gTLD”), and is a simple, common misspelling or typographical error as it transposes the “a” and “r” in “FEDERAL.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant ever authorized Respondent to register or use its mark in any manner. Further, Respondent is making neither a bona fide offering of goods or services, not a legitimate noncommercial fair use through the disputed domain name. Rather, the domain name resolves to a website containing malware. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent is using the disputed domain name to attract Internet users through confusion to install malware on unsuspecting Internet users’ computers. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the registered trademark NAVY FEDERAL dating back to 2005.
The disputed domain name was registered in 2015.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to point to a web site containing malware.
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(f), 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.”).
Complainant has registered the NAVY FEDERAL mark in the USA. Panels have found that a complainant need not register its trademark in the same country as that in which the respondent operates in order to have a valid claim under the UDRP. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”); see also Koninklijike KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Thus, the Panel finds that Complainant’s US registrations are sufficient to show rights in the NAVY FEDERAL mark under Policy ¶ 4(a)(i).
The disputed domain name is confusingly similar to the NAVY FEDERAL mark as it is a simple, common misspelling or typographical error, omitting the spacing between words, and adding the gTLD “.org”. Panels have found such alterations to a mark are insufficient in overcoming a finding of confusing similarity under Policy ¶ 4(a)(i). See Capital One Financial Corp. v. Huang Li Technology Corp c/o Dynadot, FA 1620197 (Forum June 16, 2015) (finding confusing similarity where the respondent misspelled the word “bank” by transposing the letters “a” and “n,” attached the gTLD “.com,” and eliminated spacing with respect to the CAPITAL ONE BANK mark to create the <capitalonebnak.com> domain name.); see also International Soap Box Derby, Inc. v. Domain Admin / Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1602433 (Forum Mar. 4, 2015) (“The domain name contains the mark in its entirety, merely eliminating the spaces between the terms of the mark and adding the generic Top Level Domain (“gTLD”) “.org.” These alterations of the mark, made in forming the domain name, do not save it from the realm of identity or confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to the NAVY FEDERAL mark under Policy ¶ 4(a)(i).
Respondent is not commonly known by the disputed domain name: the WHOIS information regarding the disputed domain name, lists “lin yanxiao” as the registrant of record. Respondent has failed to submit a response in this proceeding. Therefore, in light of the available evidence this Panel finds that there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the disputed domain name. Rather, the domain name resolves to a website containing malware. Panels have found such use by a respondent to evince neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Zynga Inc. v. Ryan G Foo / PPA Media Services, FA 1650448 (Nat. Arb. Forum January 14, 2016) (finding that “Respondent does not have rights or legitimate interests in the disputed domain name” because “[t]he resolving website for the <wwwzynga.com> domain name redirects Internet users to websites associated with malware and scareware.”). Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii).
Furthermore, where a party has registered and used a domain name in bad faith (see the discussion below), that party cannot be found to have made a bona fide offering of goods or services, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan, WIPO Case No. D2002-0701; see also AltaVista Company v. Saeid Yomtobian, WIPO Case No. D2000 0937.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
As stated above, Respondent has attempted to attract Internet users to his web site to install malware on unsuspecting Internet users: the disputed domain name directs Internet users to a webpage containing a warning message that reads: “*ATTENTION Verizon Wireless User: Your Microsoft Computer has been blocked*.” Prior panels have found that the use of a domain name in such a manner amounts to bad faith under Policy ¶ 4(b)(iv) as intent to commercially gain is imputed, as well as under Policy ¶ 4(a)(iii) as malware use is evidence of bad faith. See RetailMeNot, Inc. v. Above.com Domain Privacy, FA1641195 (Nat. Arb. Forum November 3, 2015) (finding bad faith registration under Policy ¶ 4(a)(iii) where Respondent “…uses the disputed domain name to attempt to download malware onto unsuspecting Internet users’ computers.”); see also Zynga Inc. v. Ryan G Foo / PPA Media Services, FA 1650448 (Nat. Arb. Forum January 14, 2016) (concluding that “Respondent has attempted to attract, for commercial gain, Internet users to its website to distribute malware and phish for Internet user personal information, which is bad faith under Policy ¶ 4(b)(iv).”); Google Inc. v. Sergey Gridasov, FA0474816 (Nat. Arb. Forum July 5, 2005) (concluding that “…Respondent’s registration and use of the disputed domain names to expose Internet users to malicious software constitutes evidence of bad faith registration and use …”); Thomson Reuters v. shasha zhu, FA1640944 (Nat. Arb. Forum November 9, 2015) (finding that Respondent’s use of “…the domain name to redirect Internet users as a part of a scheme to distribute malware…clearly indicates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(a)(iii).”); Morgan Stanley v. Above.com Domain Privacy, FA1642170 (Nat. Arb. Forum November 24, 2015) (concluding that “Respondent’s phishing and malware distribution show bad faith registration and use under Policy ¶ 4(b)(iv).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <navyfedearl.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 24, 2016
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