Equifax Inc. v. DOMAIN ADMIN
Claim Number: FA1702001718806
Complainant is Equifax Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is DOMAIN ADMIN (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <equilfax.com>, registered with Uniregistrar Corp.
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 23, 2017; the Forum received payment on February 23, 2017.
On February 28, 2017, Uniregistrar Corp confirmed by e-mail to the Forum that the <equilfax.com> domain name is registered with Uniregistrar Corp and that Respondent is the current registrant of the name. Uniregistrar Corp has verified that Respondent is bound by the Uniregistrar Corp 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 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 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@equilfax.com. Also on February 28, 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 29, 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 name(s) be transferred from Respondent to Complainant.
A. Complainant
Complainant registered its EQUIFAX mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,027,544, registered Dec. 16, 1975), and has rights in the mark under Policy ¶ 4(a)(i). Respondent’s <equilfax.com> domain name is confusingly similar to Complainant’s mark because it is simply a misspelling of Complainant’s EQUIFAX mark.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its EQUIFAX mark in any fashion, and Respondent is not commonly known by the disputed domain name. (WHOIS information). Further, Respondent has used the domain name to resolve to a website displaying generic links to third-party sites, which likely net Respondent click-through profits. (hyperlinks include: “Equifax Credit Services,” “Equifax Credit Alerts,” and “Equifax Credit Information”). Such use cannot be construed as a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Respondent has registered and is using the <equilfax.com> domain name in bad faith. Respondent has offered the domain name for sale, demonstrating bad faith under Policy ¶ 4(b)(i). Respondent attempts to disrupt the business of Complainant—under Policy ¶ 4(b)(iii)—by including competitors’ links on the resolving webpage. Respondent is attempting to attract Internet traffic and commercially benefit from the goodwill of the EQUIFAX mark, by creating confusion as to the source, sponsorship, affiliation, or endorsement of its website by using the marks of Complainant under Policy ¶ 4(b)(iv).
Finally, Respondent’s misspelling of Complainant’s mark amounts to typosquatting and is independent evidence of bad faith in the registration and use of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Equifax Inc., of Atlanta, GA, USA. Complainant is the owner of the domestic registration for the mark EQUIFAX, which it has continuously used since at least as early as 1975, in connection with Complainant’s provision of credit investigation, insurance risks, and commercial information, goods and services. Complainant also maintains a principal internet presence at its website located at <equifax.com>.
Respondent is Domain Admin, of New York, NY, USA. Respondent’s registrar’s address is indicated as Grand Cayman, Cayman Islands. The Panel notes that Respondent registered the disputed domain name on or about August 13, 2002.
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 has registered its EQUIFAX mark with the USPTO (e.g., Reg. No. 1,027,544, registered Dec. 16, 1975), and therefore claims rights in the mark under Policy ¶ 4(a)(i). A USPTO registration has been found to confer rights in a mark. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office). The Panel here finds that Complainant has rights in the EQUIFAX mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <equilfax.com> domain name is confusingly similar to Complainant’s mark because it is a simple misspelling of Complainant’s mark. The Panel notes that the domain name differs from the mark by including the letter “L” within the mark, and appending the “.com” generic top-level domain (“gTLD”). Prior panels have found that such alterations have not been distinguishing under Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). The Panel here finds that the <equilfax.com> domain is confusingly similar to Complainant’s EQUIFAX mark under 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 (Nat. Arb. 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 has no rights or legitimate interests in the disputed domain name. Complainant states it has not licensed or otherwise authorized Respondent to use its EQUIFAX mark in any fashion. A lack of contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name can be evidence of a lack of rights and legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Additionally, WHOIS information can be used to support a finding under Policy ¶ 4(c)(ii) that a respondent is not commonly known by a disputed domain name. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). In the instant proceeding, Respondent provides no information and the WHOIS information lists “DOMAIN ADMIN” as the registrant. The Panel here finds that Respondent is not commonly known by <equilfax.com>.
Next, Complainant argues that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use because Respondent is using the resolving website in a competitive manner. Prior panels have found that attempts to compete with a complainant, presumably for commercial gain, may not evince rights or legitimate interests. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Here, Complainant provided evidence of Respondent’s use of the resolving website. Respondent’s hyperlinks include “Equifax Credit Services,” “Equifax Credit Alerts,” and “Equifax Credit Information”. The Panel here finds that Complainant’s evidence supports the conclusion that Respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).
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 acted in bad faith by listing the disputed domain name for sale to the public. Past panels have held that under Policy ¶ 4(b)(i), a Respondent’s offer to sell a disputed domain name is evidence of bad faith. See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”). The Panel here finds that Respondent acted in bad faith when Respondent offered the name for sale.
Further, Complainant asserts that Respondent is disrupting its business by attempting to divert potential customers away from Complainant to third-party websites linked on the website. Previous cases have found that a Respondent disrupts a Complainant’s business and therefore shows bad faith under Policy ¶ 4(b)(iii) when the disputed domain name’s resolving website displays links to Complainant’s competitors. See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). The Panel here finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iii).
Complainant contends that Respondent has registered and is using the <equilfax.com> domain name in bad faith under Policy ¶ 4(b)(iv) by attempting to attract Internet traffic and commercially benefit from the goodwill of the EQUIFAX mark. Use of a disputed domain name to create confusion as to the source, sponsorship, affiliation, or endorsement of the content therein may constitute bad faith under Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Complainant contends that <equilfax.com> creates confusion as to the source, sponsorship, affiliation, or endorsement of its website for the purpose of attracting Internet traffic and commercial benefit through click-through ads. The Panel here finds that Respondent created a likelihood of confusion and therefore registered and used the domain name in bad faith under Policy ¶ 4(b)(iv).
Finally, Complainant argues that Respondent engaged in typosquatting because the <equilfax.com> name is a deliberate misspelling of Complainant’s EQUIFAX mark. Under Policy ¶ 4(a)(iii), typosquatting has been found to be independent evidence of bad faith in the registration and use of a domain name. See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). The Panel may note the relevant misspelling lies in the addition of the letter “L” between the “I” and “F” in the EQUIFAX mark. The Panel here finds that Respondent acted in bad faith in the registration and use of <equilfax.com>.
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 <equilfax.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 11, 2017
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