Charles Schwab & Co., Inc. v. Leonard Bogucki / Venta
Claim Number: FA1605001676852
Complainant is Charles Schwab & Co., Inc. (“Complainant”), represented by Laura M. Franco of Winston & Strawn LLP, California, USA. Respondent is Leonard Bogucki / Venta (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <shwab.com>, registered with ENOM, INC.
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 May 26, 2016; the Forum received payment on May 27, 2016.
On May 27, 2016, ENOM, INC. confirmed by e-mail to the Forum that the <shwab.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 May 31, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 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@shwab.com. Also on May 31, 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 June 23, 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 one of the leading financial services firms in the county. It or its affiliates manage over $2.58 trillion in client assets and service 9.9 million brokerage accounts, 1.5 million corporate retirement plan participants, nearly 1.1 million banking accounts, and 7000 registered investment advisors. It operates over 300 branches nationwide with over 1200 financial consultants. It uses a number of SCHWAB marks in connection with its business. The marks are registered around the world, with rights dating back to at least 1992.
According to Complainant, the disputed domain name merely omits the “C” from the mark, and qualifies as confusingly similar. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in or to the disputed domain. Complainant has not given Respondent any license, permission, or authorization by which Respondent could make any use of any of its marks. The WHOIS indicates “Leonard Bogucki” as registrant, failing to evidence rights under Policy ¶ 4(c)(ii). Further, Respondent operates a click-through website with such links as “Charles Schwab” (which links to Complainant’s website) and “Individual Retirement Accounts.” Such use does not constitute a bona fide offering or a legitimate noncommercial or fair use. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith. Respondent has a history of adverse findings in the UDRP context, imputing a pattern of bad faith in the instant dispute under Policy ¶ 4(b)(ii). Next, while Respondent operates a click-through website, Policy ¶ 4(b)(iv) bad faith is demonstrated as Respondent presumably profits. Respondent also likely registered and used the disputed domain with actual or at least constructive knowledge in Complainant’s marks and its rights therein. Last, Respondent has engaged in typosquatting. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SCHWAB and uses it in connection with its financial services business.
Complainant’s rights in its mark date back to 1992.
The disputed domain name was registered in 2001.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that provides links to products and services that compete with those of Complainant.
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 (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 merely omits the “C” from the Complainant’s SCHWAB mark, so it is confusingly similar to the mark in the sense of the Policy. See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”); see also Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such “generic” typos do not change respondent’s infringement on a core trademark held by the complainant). Thus the Panel finds the disputed domain name to be confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
The WHOIS indicates “Leonard Bogucki” as registrant, and Respondent has failed to make any arguments in this proceeding. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Citigroup Inc. v. Acme Mail, FA 0402000241987 (Forum Apr. 12, 2004) (finding that respondent had not established rights or legitimate interests in the disputed domain name where “[r]espondent has no proof and there is no evidence in the record to suggest that [r]espondent is commonly known by <citiban.com>“).
Respondent operates a click-through website with such links as “Charles Schwab” (which links to Complainant’s website) and “Individual Retirement Accounts”, which is one of the products provided by Complainant. Such use has not been considered to constitute a bona fide offering or a legitimate noncommercial or fair use. See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Therefore, the Panel finds that Respondent has not established any rights or legitimate interests per Policy ¶ 4(a)(ii).
Respondent operates a click-through website from which he presumably derives profits. This constitutes bad faith use pursuant to Policy ¶ 4(b)(iv). See The Dress Barn, Inc. v. Pham Dinh Nhut, FA1503001611220 (Forum May 15, 2015) (“The Panel agrees that Respondent’s inclusion of various hyperlinks; some of which direct Internet users to competing websites of Complainant, some which direct Internet users to Complainant’s own website, and some of which are unrelated to Complainant’s business; evince bad faith attraction for commercial gain.”).
Further, Respondent has engaged in typosquatting: the disputed domain name differs from Complainant’s mark only by the omission of a single letter. This amounts to bad faith registration and use under Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Forum Oct. 28, 2004) (By engaging in typo squatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy 4(a)(iii).); Natl Assn of Profl Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typo squatting, however, is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typo squatting is inherently parasitic and of itself evidence of 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 <shwab.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 24, 2016
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