Navy Federal Credit Union v. Marlene St Peter
Claim Number: FA1702001716279
Complainant is Navy Federal Credit Union (“Complainant”), represented by John Gary Maynard, Virginia, USA. Respondent is Marlene St Peter (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com>, registered with Wild West Domains, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 7, 2017; the Forum received payment on February 7, 2017.
On February 8, 2017, Wild West Domains, LLC confirmed by e-mail to the Forum that the <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> domain names are registered with Wild West Domains, LL:C and that Respondent is the current registrant of the names. 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 February 9, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 1, 2017 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@navy-federal-online-banking-alert.org, postmaster@navy-online-banking-alert.com, postmaster@new-navy-online-alert-banking.net, postmaster@online-banking-alert-navy.com. Also on February 9, 2017, 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 14, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant provides financial products and services to current and former service members of the United States military. Complainant uses the NAVY FEDERAL CREDIT UNION, NAVY CREDIT UNION, NAVY FEDERAL, NAVY FEDERAL ONLINE, NAVY, and NFCU (“NFCU marks”) in conjunction with its business practices. Complainant registered the NAVY FEDERAL CREDIT UNION, NAVY CREDIT UNION, NAVY FEDERAL, and NAVY FEDERAL ONLINE marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. Nos. 2,994,079, registered Sept. 13, 2005; 1,883,913, registered Mar. 14, 1995; 2,994,078, registered Sept. 13, 2005; 2,269,109; registered Aug. 10, 1999, respectively). Complainant indicates that NFCU is a common abbreviation for the NAVY FEDERAL CREDIT UNION mark and, through consistent and long-standing use, Complainant has common law rights to the NFCU mark. Respondent’s <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> are confusingly similar to the NFCU marks because they incorporate the NAVY or NAVY FEDERAL marks in their entirety, adding hyphens, generic words (“banking,” “online,” “alert,” and “new”), and generic top-level domains (“gTLD”) (“.com,” “.net,” and “.org”).
Respondent does not have rights or legitimate interests in the NFCU marks. Respondent is not commonly known by the disputed domain names. Complainant has not authorized or licensed Respondent to use the NFCU marks in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods and services, or a legitimate non-commercial or fair use of the domain. Respondent’s <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> resolve to inactive pages displaying a message stating “This Site Can’t Be Reached.”
Respondent registered and is using <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> in bad faith. The disputed domain names are inactive, parked webpages with no demonstrable intent of active use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Navy Federal Credit Union of Vienna, VA, USA. Complainant is the owner of domestic registrations for the marks NAVY FEDERAL CREDIT UNION, NAVY CREDIT UNION, NAVY FEDERAL, and NAVY FEDERAL ONLINE, which it has continuously used since at least as early as 1999, in connection with its provision of investment, insurance, and credit union services.
Respondent is Marlene St Peter of Marine, MN, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that Respondent registered <navy-federal-online-banking-alert.org> on or about November 13, 2016, <navy-online-banking-alert.com> and <new-navy-online-alert-banking.net> on or about November 12, 2016, and <online-banking-alert-navy.com> on or about November 11, 2016.
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.”).
Complainant provides financial products and services to current and former service members of the United States military. Complainant uses the NAVY FEDERAL CREDIT UNION, NAVY CREDIT UNION, NAVY FEDERAL, NAVY FEDERAL ONLINE, NAVY, and NFCU (“NFCU marks”) in conjunction with its business practices. Complainant registered the NAVY FEDERAL CREDIT UNION, NAVY CREDIT UNION, NAVY FEDERAL, and NAVY FEDERAL ONLINE marks with the USPTO, demonstrating its rights in the mark under Policy ¶ 4(a)(i) (e.g. Reg. Nos. 2,994,079, registered Sept. 13, 2005; 1,883,913, registered Mar. 14, 1995; 2,994,078, registered Sept. 13, 2005; 2,269,109; registered Aug. 10, 1999, respectively). Prior panels have found that USPTO registrations are sufficient to show rights in a mark. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has rights in the marks under Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> are confusingly similar to the NFCU marks because they incorporate the NAVY or NAVY FEDERAL marks in their entirety, adding hyphens, generic words (“banking,” “online,” “alert,” and “new”), and gTLDs (“.com,” “.net,” and “.org”). Past panels have concluded that such changes are insignificant to a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also State Farm Mutual Automobile Insurance Company v. New Ventures Services, Corp, FA 1647714 (Forum Dec. 17, 2015) (finding that adding the common name “John” to complainant’s STATE FARM mark was insufficient to overcome a determination of confusing similarity.). The Panel here finds that the disputed domain names are confusingly similar pursuant to Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Complainant has met this burden.
Complainant asserts that Respondent does not have rights or legitimate interests in <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> because Respondent is not commonly known by the disputed domain names. WHOIS information associated with this case initially reveals that Respondent use the “Domains By Proxy, LLC” privacy service to shield its identity. Subsequent WHOIS information identifies Respondent as “Marlene St Peter.” The Panel notes that Respondent has failed to submit a Response in this proceeding. Thus, absent any argument or evidence from Respondent, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant maintains that Respondent has not made a bona fide offering of goods and services, or a legitimate non-commercial or fair use of the disputed domain names. Complainant contends that Respondent’s <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> domain names resolve to inactive pages displaying the message “This Site Can’t Be Reached.” Previous panels have found that “the [failure to make an active use] of a domain name that is identical to [c]omplainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).” See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004). The Panel here finds that Respondent does not provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶¶ 4(c)(i) and 4(c)(iii), respectively.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant contends that Respondent registered and is using the <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> in bad faith. Complainant again notes that Respondent’s <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> resolve to blank webpages. Complainant asserts that the disputed domain names are inactive, parked webpages with no demonstrable intent of active use. Panels have held that failure to show that requisite intent indicates bad faith registration and use under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy). The Panel here finds that Respondent has acted in bad faith under Policy ¶ 4(a)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
As Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <navy-federal-online-banking-alert.org>, <navy-online-banking-alert.com>, <new-navy-online-alert-banking.net>, and <online-banking-alert-navy.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: March 28, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page